South African Law Research Papers (original) (raw)

The South African Constitution establishes procedures for amending any of its provisions and empowers the Constitutional Court to decide on the constitutionality of these amendments. Whether or not the Constitution imposes judicially enforceable substantive limits on the powers of Parliament to amend the Constitution is not clear. This article argues that the Constitution does not impose substantive limits on the power of constitutional amendment. However, the fact that the Constitution establishes different procedures for the amendment of different sections creates an implied hierarchy within the Constitution. This implied hierarchy enables the Constitutional Court to scrutinise the substance of constitutional amendments to determine compliance with the proper procedure for each amendment. Nevertheless, once the court ascertains that an amendment has been enacted by following the appropriate procedure, the amendment cannot be attacked on substantive grounds. Contrary to the views o...

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- Reference, Political Science, Comparative Constitutional Law, Constitutionalism

The right to ‘freedom from all forms of violence from public or private sources’, enshrined in Zimbabwe’s new Constitution, could have a significant impact on efforts to end violence against women (VAW) in the country. The right is particularly relevant in the Zimbabwean context where VAW occurs in a range of settings, from the most intimate of relationships in the home to the state’s use of rape as a political weapon. One way in which the state can fulfil its duty to address VAW is through the reform of the country’s rape law. With comparative reference to the impact of the right to freedom from violence in South African law, this article discusses three areas of Zimbabwean law that present potential obstacles to achieving justice for rape survivors: the definition of the crime of rape, the abolished but tenacious cautionary rule, and the sentencing of sexual offenders.

- by Doug Coltart
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- African Studies, Law, Criminal Law, Constitutional Law

Entry in: Martyn, G., Berkvens, L., & Brood, P. (Eds.) (2020). 'Juristen die schreven en bleven: Nederlandstalige rechtsgeleerde klassiekers'. Stichting OVR / Verloren. Pro memorie: bijdragen tot de rechtsgeschiedenis der Nederlanden,... more

Since the revolution in modern telecommunications that followed the invention of the telegraph, telecommunication networks have provided channels for the fast delivery of communications across national borders. This transnational nature of telecommunication networks have led to the establishment of international regulatory regimes on the subject. On the other hand, developing countries consider regional economic integration as a major strategy for promoting trade and development, telecommunications have been seen within this context as a strategic tool for facilitating regional economic integration. This has also led to the establishment of regional telecommunication regulatory regimes that aim to promote regional integration and regulatory harmonization. This book discusses telecommunication regimes established by international and regional organizations such as the United Nations, the International Telecommunication Union, the World Trade Organization, the African Union, the Economic Community of West African States, and the Southern African Development Community, among a number of others. It will be relevant to policy makers, regulators, lawyers, law students, investors and telecommunication operators, as well as any person interested in international and African regional telecommunication regimes.

- by Uchenna Jerome Orji
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- African Studies, International Law, Telecommunications, United Nations

There is little doubt that public policy, as a means of judicial control over the enforcement of contractual terms, is, and forever will be, somewhat of an unruly horse that is beyond absolutejudicial control. As a standard-orientated concept, which is always context-dependent and subject to change, it simply cannot be applied in a formulaic or ritualistic manner. This is its nature. That this is so, however, is not to say that there are no ways of diminishing the uncertainty that accompanies its application in a contractual setting. Whilst the irremediable absence of a rules-like method to the application of public policy renders this area of law inherently uncertain, this uncertainty is exacerbated by other factors. These factors include the improper conceptu- alisation of the nature of and test for public policy; the failure to define properly the role of constitutional values in the public policy analysis; and the failure to engage, on a case-by-case basis, substantively and critically with the various policy considerations which give content to public policy. Whilst properly addressing each of these issues will by no means eliminate the uncertainty that accompanies the application of public policy, it will definitely go some way towards bringing this uncertainty within acceptable levels.

- by Matthew Kruger
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- Constitutional Law, Contract Law, Philosophy Of Law, South African Law

The Constitution radically altered the substantive norms that underpin the division, regulation and enforcement of property and housing rights in South Africa. Under the aegis of Constitutional Court, there has been a deliberate effort to bring into being a system of legally enforceable rights and duties which, when viewed as a whole, afford commensurate protection to the often conflicting interests of individuals. This process of reconstruction, however, is far from complete. One of the areas which requires further development is the law regulating evictions. As regards the rights of unlawful occupiers, it has been held that evictions that would result in homelessness may not be executed until alternative accommodation is provided by the state. Whilst this delay in the execution of an eviction order will often be commercially unbearable, landowners have been told to be patient. In this article it is argued that the existing legal scheme, without more, fails to strike a proper balance among the rights and interests of owners, occupiers and society. It is argued that this institutional failure arbitrarily deprives landowners of property and that to remedy this constitutional defect such owners must, as a rule, be afforded a compensatory remedy against the state.

- by Matthew Kruger
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- Constitutional Law, Property Law, Housing Law, South African Constituional Law

This article analyses three recent judgments of our apex courts. Collectively, they illustrate a maximising of the 'minimum threshold requirement' of rationality through the seemingly inexhaustible principle of legality. The question sought to be addressed is whether the courts are going too far in extending this baseline requirement to cover procedural fairness, reason-giving and something akin to proportionality, in the context of non-administrative action and in the absence of any meaningful engagement with the doctrine of separation of powers. In addressing this question, the article examines the tenets of the doctrine of separation of powers, and juxtaposes these theoretical tenets with the usefulness of the doctrine in practice. The role of the judiciary, notably through judicial review, is highlighted as the crucial 'check' against abuses of state power which gives this doctrine its lasting relevance. In examining how the courts ought to strike the 'delicate balance' in exercising their power, the article explores the paradoxes inherent in judicial review and its defensible limits. Against this backdrop, the rationality requirement is elucidated and compared with the more searching requirement of reasonableness. Finally, the analysis of the case law reveals that although the conclusions reached in the judgments are to be hailed, their failure to engage meaningfully with the prescripts of the separation of powers in expanding the frontiers of rationality review is indicative of a worrying trend that may ultimately compromise our judiciary's crucial institutional integrity. 'The Constitutional Court's principle of legality does not yet cover procedural fairness, and has not yet been made to require the giving of reasons by an * I am grateful and honoured to have been awarded the David & Elaine Potter Fellowship and the DAAD-NRF Scholarship for the purposes of my Master's degree studies. The opinions expressed and conclusions arrived at in this article are mine and are not to be attributed to the aforegoing funders. I wish to thank the University of Cape Town in conjunction with the David & Elaine Potter Foundation, as well as the National Research Foundation and the German Academic Exchange Service (DAAD), for the funding assistance. I would also like to thank my dissertation supervisors, Professors Hugh Corder and Pierre de Vos, for being such inspiring mentors. † BBusSci LLB LLM (UCT). Attorney of the High Court of South Africa.

- by Adv Lauren Kohn
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- Sociology, Reference, South African Law

The South African Constitution protects property but at the same time provides for its expropriation on the condition, amongst others, that “just and equitable” compensation is paid. Market value, the foremost determinant of compensation in pre-constitutional expropriation law, has now become but one of several factors in determining “just and equitable” compensation. The acquisition, at market-value, of land for land reform is not always feasible and the candidate shows that the full transformative effects of the property clause in the Constitution and land reform measures, can therefore only be unleashed if the guidelines for just and equitable compensation are rethought and reformulated.

- by Elmien Du plessis
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- South African Law, Expropriation

Over the past 20 years, of the 23 socio-economic rights decisions handed down by the South African Constitutional Court, 15 judgments have related to the s 26 right to adequate housing, making it by far the most litigated socioeconomic right. The relative frequency of housing rights cases before the Constitutional Court relates to the intensity of post-apartheid struggles over access to urban and peri-urban land. Analysing the contours and consequences of the housing rights related judgments over the past 20 years, we highlight the Constitutional Court's role as arbiter of clashing rights of ownership and occupation in the context of evolving and inadequately-managed urbanisation. The article was published in the South African Journal on Human Rights in Vol 31(3) in 2015.

- by Michael Clark
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- Law, Constitutional Law, Human Rights Law, Human Rights

A redistribution agreement is one of the available methods to assist the executor in winding up a deceased estate. It may be used to overcome impractical situations and/or statutory limitations that might occur during the estate administration process. The heirs and legatees and, in some instances, a surviving spouse may then agree to the reshuffling of their inheritance awards. The Chief Registrar of Deeds issued a directive that places a burden on the Master of the High Court in approving the "acceptance" of the agreement as part of the registration application for the transfer of immovable inheritance property. This was in response to a legal opinion from the office of the Chief State Law Advisor, incorporated in a 2010 internal Master's directive on instruction of the Chief Master. It directed that a redistribution agreement is deemed enforceable only after the Master "duly examined and approved" its legality. However, the Master's practice of approving a redistribution agreement is not a rule of law and cannot supersede the provisions of a statute. This article investigates whether the Master, as a "creature of statute", is acting within the parameters of its statutory administrative acts and functions involving a redistribution agreement.

The question of providing due recognition to E-Wills is not a new one. As industries across the world increasingly rely upon technology during the global outbreak of COVID-19, it should come as no surprise that legal professionals have renewed their interest in the present topic. However, at the outset, we must view the present situation with a simultaneous sense of both caution and excitement. If we keep the technological dangers apart (in arguendo), the present situation opens the door for courts to intervene and to bring about a sudden overhaul of the anciin Family and Succession Law regime in commonwealth nations. But on the other hand, numerous hurdles exist-namely with regard to the recording and testing of the genuineness of an E-Will, for example. The question of the validity of an E-Will in probate cases under the Succession Acts of various common law countries is also an interesting one. This article seeks to move a step ahead from Ghatak by analyzing how two years on from her 2017 publication, the COVID-19 crisis has, in all probability, made major common law jurisdictions (with afocus on India, the most populous and judicially overburdened of them all) move into the uncharted territory of recognizing E-Wills as a necessity. Further, this article addresses how the courts can retain their active role and thus obviate the needfor a legislative process (presumably, a hushed ordinance) in order to formalize the inclusion of digital methodology.

- by Naman Anand and +1
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- Comparative Law, Intellectual Property, Family Law, Succession Law

Om die argument ten gunste van die herstellende benadering tot straf te verstaan, word die wyse waarop die howe vonnisse vasstel eerstens in hierdie opstel bespreek. Tweedens word die verskeie vorme van straf en die doel van straf bespreek. Aan die hand van regspraak, Afrika regsleer en onafhanklike navorsing sal die navorsingsprobleem ten gunste van die herstellende benadering geargumenteer word.

- by Liesl Hager
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- Criminal Law, Jurisprudence, Philosophy, Philosophy Of Law

These days, it is common for people to buy goods that only exist in cyberspace. These items have been dubbed “virtual property” by many academics, although the notion of virtual property has not been expressly accepted or denounced by the legislator.
Currently, the status quo is that people who purchase virtual goods within virtual worlds are granted a right to use these goods through various licensing agreements with the developers of the virtual worlds within which these goods are located. This means that the individual is not afforded the full scope of rights that would accrue to him/her would these virtual goods be classified as a manifestation of personal property.
In a vacuum these considerations do not seem to warrant much concern, however, they become more than a mere triviality when one comes to the realisation that some manifestations of virtual goods often accrue values of thousands of dollars on the secondary market. In instances where creditors are probing the virtual contents of an insolvent estate, this question becomes even more interesting.
This dissertation will consider the way the term “property” is defined in the Insolvency Act 24 of 1936 and, more specifically, whether the notion of virtual property could be recognised within the definition’s broad scope. Furthermore, it posits that the recognition of virtual property rights in the context of insolvency is not only possible, but that it would be in the interest of the creditors of the insolvent estate to do so.

- by Lönngren Prinsloo
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- Insolvency Law, Virtual Worlds, End User License Agreement, South African Law

South African Muslims constitute a religious minority group that is subject to dual legal systems. In the public sphere they are bound by South African law whereas in the private sphere are duty bound in terms of their religion to follow Islamic law. Muslims are required, in terms of their religion, to ensure that their estates devolve in terms of the Islamic law of succession. A son inherits double the share of a daughter in terms of the Islamic law of intestate succession. This unequal distribution of shares has led to a premise that the Islamic law of intestate succession discriminates against females. The South African Constitution strongly promotes the right to equality and non-discrimination. There is therefore a serious need to investigate the fairness of the Islamic law of intestate succession within the context of South African law. This is in the interest of a religious minority group who have been in South Africa since 1654. No cases have (to date) gone to the South Afric...

- by Sh Muneer Abduroaf
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- Constitutional Law, Succession Law, South African Law, Isalmic Law
- by Federica Miranda
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- Roman Law, South Africa, Droit Prive, South African Law
- by Sh Muneer Abduroaf
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- Constitutional Law, Succession Law, South African Law, Isalmic Law

HOMOSEXUALITY, THE BILL OF RIGHTS AND THE UNLAWFULNESS CRITERION IN THE LAW OF DELICT ANTON KOK* Senior Lecturer, Department of Legal ... The implication of this interpretation of the Conroy decision is, as with the... more

- by Anton Kok
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- South African Law
- by Lirieka Meintjes-van Der Walt
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- Sociology, Reference, South African Law
- by Adriaan van Niekerk
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- Human Geography, Law, South African Law

The eventual enactment of the long-awaited Criminal Law (Sexual Offences and Related Matters) Amendment Act (SORMA) is an important state initiative aimed at addressing the high incidence of sexual assault in South Africa. The Act introduces several legislative reforms to the law on sexual assault. This essay will critically examine three of these: the definition of the crime of rape, provision post-exposure prophylaxis (PEP), and compulsory HIV testing of accused persons.

- by Doug Coltart
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- Law, Criminal Law, Constitutional Law, Human Rights Law

This note discusses some remarks made in Radebe v Sosibo NO 2011 (5) SA 51 (GSJ) — a matter heard on appeal in the South Gauteng High Court. The case dealt, in essence, with the question whether a contextual reading of a 'property exclusion clause' in an antenuptial contract could be construed as a valid pactum successorium (succession agreement or pactum de succendo) when one of the parties to the contract died intestate.

- by Anton van der Linde
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- Reference, South African Law, Law of succession, Pactum Successorium
- by Prof Magda Slabbert
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- Medical Law, South African Law, Case Review of Law

Gambling, which is an area of concurrent national and provincial competence, provides a lens into South African federalism and co-operative government. Bingo machines may play a disproportionately important role in determining the fate of provincial powers in South Africa as s 146 of the South African Constitution, which regulates conflict between national and provincial legislation, threatens to become the subject of a defining court
decision. The substance of the dispute is that the old-fashioned game of bingo has given way to bingo machines which have the look, feel and sound of casino slot machines. Some provincial legislation allows for the licensing of these machines, an approach resisted by central government. This mirrors a battle in the United States, where the same machines
were used in order to get around regulatory distinctions in the Indian Gaming Regulatory Act of 1988.

- by Stephen Louw
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- Gambling Studies, Bingo, Federalism, Federalism and Intergovernmental Relations

In South Africa, thousands of families lose their homes each year when they are repossessed and sold by a bank. A sale in execution takes place when a person is unable to repay the monthly instalments due on a loan they owe to a creditor (usually a bank), and the person’s property is sold at a public auction to pay off the debt. This new guide is a resource for individuals and households who are facing the threat of a sale in execution of their homes, as well as for community-based paralegals and lawyers who deal with sales in execution of people’s homes or bank repossessions. The guide explains the relevant legal processes and sets out what steps homeowners can take to avoid their houses being sold in execution. It will help homeowners prevent sales in execution before they happen; oppose sales in execution if the process to repossess their home is already underway; or assist homes owners who have already lost their homes through a sale in execution.

- by Michael Clark
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- Access to Justice, Property Law, Housing, South African Constitutional Court

Professor Pierre de Vos se amptelike blog: “Constitutionally Speaking” (constitutionallyspeaking.co.za) handel oor sosiale en politiese kwessies in Suid-Afrika. Die tuiste(1) gee die leser ‘n perspektief van wat die Grondwetlike Reg in Suid-Afrika behels en gee lesers ook kans om kommentare op die artikels, wat deur de Vos gepubliseer is, te maak.
De Vos en Lindiwe Mazibuko (Die DA se Parlimentêre Leier) het beide klagtes teen President Jacob Zuma by die Openbare Beskermer ingedien. De Vos plaas op 20 Maart die artikel: “Nkandla Report exposes President Zuma’s personal involvement in the project” en op 22 Maart die artikel: “Extract from Nkandla Report: How Zuma stymied investigation”. Ek het my refleksie gebaseer op my kommentare op beide die betrokke artikels. (Sien bylaag vir aangehegde artikel kommentare)
In die artikel: “Nkandla Report exposes President Zuma’s personal involvement in the project” maak de Vos dit duidelik aan die leser dat President Zuma herhaaldelik sy betrokkenheid by die Nkandla Projek ontken het en dit steeds ontken. De Vos lewer egter bewyse aan die leser (deur middel van die Openbare Beskermer se verslag) dat president Zuma wel betrokke was by die Nkandla Projek en uitgebreide kennis gedra het oor die aanwending van publieke fondse.
In die artikel haal De Vos President Zuma aan (in ‘n onderhoud met ENCA): “…as president, one did not ask about or debate matters relating to one’s personal security. “You don’t,” he said. “No president asks that question…. I can tell you sitting here — there are things that they have done that I don’t know. In fact, they will tell you [that you are] not supposed to know.”
In die stelling beweer die president dat hy nie kennis mag dra van enige projekte wat sy persoonlike veiligheid tot betrekking het nie. Hy beweer ook in die stelling dat daar baie goed gedoen is waarvan hy nie kennis dra nie.
Die verskoning kan nie deur die president gebruik word nie, omdat hy bewus was van ál die verwikkelinge in die Nkandla Projek. Zuma het kennis gedra dat die projek deur die belastingbetaler gefonds word. Zuma het met argitekte ontmoet en verskeie dokumente onderteken vir die goedkeuring van luukse opgraderings op Nkandla. Zuma kan dus nie sy betrokkenheid ontken nie. Zuma het dokumente onderteken en dus was hy bewus gewees van die kostes wat die opgraderings beloop én die feit dat dit deur die publiek gefonds word.
Zuma het in onderhoude gesê dat die Nkandla Projek ‘n sekuriteits opgradering van sy woning is. Deel van die sogenaamde “security upgrades” sluit volgens die openbare beskermer se verslag ook die volgende in: “cattle culvert; …Tuck Shop; … relocation of families; upgrade of water supply; helipad…”, sowel as die konstruksie van ‘n amfiteater en ‘n swembad. Die president het indiepte kennis gedra oor die feit dat die sogenaamde “opgraderings” in werklikheid luukse aanbouïngs was ter wille van eie gewin en ten koste van die belastingbetaler en publieke fondse.
Dit is absurd dat die belastingbetaler se geld spandeer word op luukse opgraderings en dat die president dan betrokkenheid by die saak ontken. Die president moet verantwoordelikheid neem vir die spandering van die belastingbetaler se fondse. Die verskoning dat hy “nie geweet het nie” of “nie mag weet nie” is ongeldig. As president van die land is hy geregtig op enige inligting wat die spandering van publieke fondse behels. Dit is deel van Presiden Zuma se verantwoordelikhede en verpligtinge as President om die korrupte spandering en aanwending van publieke fondse te verhoed. Dit is ook in die publiek se belang om te weet hoe hul geld as belastingbetalers spandeer word en op wat.
In die artikel: “Extract from Nkandla Report: How Zuma stymied investigation” maak de Vos dit duidelik aan die leser dat President Zuma versuim het om vrae te beantwoord en dukomente te verskaf tydens die ondersoek. President Zuma vertraag dus doelbewus die ondersoek van die Openbare Beskermer deur nie die dokumente beskikbaar te stel nie. Gesamentlik het die President en verskeie ministers hulle samewerking geweier.
Die Openbare Beskermer, Thuli Madonsela, het dit duidelik gemaak aan publikasies soos SABC(2) en City Press(3) dat sy gefrustreerd was met die ministers wat haar Nkandla ondersoek vertraag het. Sy verwys spesifiek na die staat wat haar probeer keer het om haar verslag bekend te maak en ministers wat die ondersoek op kritiese tye doelbewus vertraag het(3). Madonsela verwys ook na die feit dat sy en haar ondersoekspan net toegang gegee is tot sekere dokumente, vir ‘n beperkte tyd, onder toesig. Madonsela sê ook dat sekere sleutel figure van haar ondersoekspan by belangrike vergaderings uitgesluit is.
Volgens die ‘Public Protectors Act’ 1994; Artikel 11(3) is dit onwettig om nie die openbare beskermer se vrae te beantwoord of om die nodige dokumente te verskaf nie(4). Sulke optrede is volgens die ‘Public Protectors Act’ 1994, Artikel 11(4) strafbaar deur ‘n boete van R40 000 en/of 12 maande tronkstraf(4). Madonsela beweer verskeie ministers en die President het onkonstitusioneel opgetree tydens haar ondersoek(3).
Dit is onaanvaarbaar dat die president en sy ministers weg kom met die optrede. Deur hulle magsposisies te misbruik ontduik hulle die tronkstraf en boetes. Dit is onregverdig en bewys weereens dat die Suid-Afrikaanse regstelsel nie gelykheid bevorder nie. Reg en geregtigheid geskied beslis nie wanneer korrupsie en die misbruik van magsposisies skuldiges uit die tronke hou nie.
Volgens City Press sê Madonsela op meer as drie geleenthede dat die ministers die hof mislei deur feite te verdraai of uit te laat.(3) Lede van die publiek is van menig dat die president jok oor sy betrokkenheid by die projek en doelbewus sy mag misbruik en korrupsie bevorder. Die publiek is ook van mening dat die regstelsel korrup is omdat almal nie gelyk behandel word nie.(1) Dit is ongelukkig ‘n feit dat geld, mag en invloed die beloop van ‘n ondersoek en die uitkomste van ‘n saak kan beïnvloed, ten gunste van die beskuldigde.
Die wantroue van die gemiddelde Suid-Afrikaanse burger word duidelik in die ‘blog’ gereflekteer. Die gemeenskap se kommentare dui op mense wat opstandig is teenoor korrupsie, bedrog en die misbruik van mag deur onbekwame leiers. Mense het ‘n behoefte na inligting. In die belang van die publiek moet meer gedoen word om die publiek in te lig oor soortgelyke kwessies. Meer moet gedoen word om die publiek se belange te beskerm. Daar moet ook beter maatreëls in plek gestel word vir die verantwoordelike en billike aanwending van publieke fondse.

One of the most important issues facing administrative lawyers today is that of the appropriate role of the judiciary in a constitutional democracy. This concern is at the centre of many of the recent important decisions on the legality, rationality and reasonableness of exercises of public power.1 Under apartheid, the courts were often seen as the only, if not always effective, protectors of individuals against the state. Given this historical context, arguments for a less active judiciary continue to be viewed as politically conservative.2 However, recent arguments emphasize the need for the role of the judiciary to be examined more closely, with a view to developing a ‘theory of deference’ and introducing some variability into the level at which state action is scrutinised.3 It has been pointed out that the ‘climate of constitutional justification’4 in which our law now operates ‘requires justification for the exercise of judicial power as much as any other sort of power’.5 Negat...

- by Anashri Pillay
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- Sociology, Reference, South African Law

When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency...

- by Carika Keulder
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- Law, South African Law

Both the Tax Administration Act and the Customs and Excise Act provide SARS with the power to conduct a search and seizure without first obtaining a warrant. The justification for a warrantless search is that it enables SARS to act straight away, thus preventing tax evaders from destroying or hiding evidence of their evasion. This article explains that certain circumstances need to be present before a warrantless search may be conducted, and certain guidelines must be adhered to when a warrantless search and seizure operation is conducted. This article, more importantly, demonstrates that the warrantless-search framework of the Customs and Excise Act is inconsistent with the warrantless-search framework of the Tax Administration Act. Consequently, when a taxpayer may be subject to value-added tax (which is collected in terms of the Tax Administration Act) and customs duty (which is collected in terms of the Customs and Excise Act) SARS can elect to conduct a search in terms of the l...

- by Carika Keulder
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- South African Law

In this article, we discuss the current state of Alternative Dispute Resolution (‘ADR’) law, practice and education in South Africa, with a particular focus on the potential role for mediation in commercial disputes. Our angle is to frame the material with a discussion of economic and contract theory, particularly that on private ordering and relational contracting. We link this socio-legal theory to more specific theory on ADR itself, and then contextualise ADR in South Africa. We discuss the role of ADR in commercial practice generally and provide a detailed account of the South African construction industry specifically. Our major conclusion is that ADR is often the most appropriate form of dispute resolution, particularly where social capital is at stake. This provides the link between ADR theory and private ordering/relational theory. Another important conclusion is that South Africa needs more specialist mediators, as well as a legal and political environment which incentivise...

- by Michelle Porter-Wright
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- Political Science, South African Law

should understand that better, if I had it written down: but I can't quite follow it as you say it.' Lewis Carroll, Alice in Wonderland * BA (Hons) (Wesleyan) JD MA (Columbia) PhD (Pretoria). I would like to thank the following persons: Theunis Roux, and my colleagues at SAIFAC, provided the stimulating conversation and the vibrant environment that gave rise to the ideas in this paper. Iain Currie paid careful attention to an earlier draft and in many instances saved me from errors both large and small.

- by Stu Woolman
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- Law, Reference, South African Law

The State of Disaster declared in South Africa to deal with the COVID challenge have (un)intended, yet somewhat predictable consequences given the country's historical socio-political trajectory. This article discusses some of these and introduce terms such as the contradictory state, decline of democracy and the rise of authoritarianism and the phenomenon of group-think impacting sound and reasonable policy choices. It hints at the developing differences between the "constitutionalists" and "securocrats" that brings up images of the militarisation of apartheid during the 1970s and 1980s. The challenges for civil society to uphold the Constitution and the Bill of Rights are pointed out.

Muslims have been living in South Africa for over 300 years. These persons are required in terms of their religion to follow Islamic law. There has (to date) been no legislation enacted by the South African parliament that gives effect to Islamic law. South African Muslims are able to make use of existing South African law provisions in order to apply certain Islamic laws within the South African context. This paper investigates the constitutionality of an Islamic will left behind by a testator that has the effect of a son inheriting double the share of a daughter. The right to freedom of testation and the right to equality are first looked at by way of introduction. The constitutionality of the Islamic will is then be looked at. The paper concludes with an analysis of the findings and makes concluding remarks.

- by Sh Muneer Abduroaf
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- Islamic Law, Civil Procedure, South African Law
- by Ronnie Donaldson
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- Human Geography, Law, South African Law

- by Dikshi Arora
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- Law, Comparative Law, Intellectual Property, Family Law

The author contends that the Constitutional Court's predilection for undertaking fundamental rights analysis in terms of the vague 'values' found in s 39(2) of the Constitution has had the deleterious consequence of denuding many of the specific substantive provisions of the Bill of Rights of their 'expected' content. The court's long-standing emphasis on minimalism does not only undermine the Bill of Rights : an approach to constitutional adjudication that makes it difficult for other judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied in any future matter, constitutes a paradigmatic violation of the rule of law. Such an approach to the interpretation of the constitutional text - and to the rule of law - cannot possibly be what the drafters of the Constitution intended.

- by Stu Woolman
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- Law, Reference, South African Law