Search results for: South African Law Reform commission

Authors: Ronelle Prinsloo

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In South Africa married retirement fund members can manipulate the legal framework to prevent their spouses from accessing shared retirement benefits during divorce proceedings. The current legal structure allows retirement fund members to accelerate the accrual of their benefits, often by resigning or purchasing living annuities before the finalization of a divorce. This action effectively places these benefits beyond the reach of their spouses, leading to substantial financial prejudice, particularly for financially weaker spouses, typically women. The research highlights that South African courts, including the Supreme Court of Appeal (SCA), have not adequately scrutinized the implications of these actions. Specifically, the SCA has ruled that the capital and proceeds from living annuities are not subject to division during divorce, which undermines the financial rights of non-member spouses. The courts' failure to consider the source of the money used to purchase these annuities and its potential inclusion in the joint estate or accrual system is a significant concern. The South African Law Reform Commission has recognized this issue, noting the negative impact on financially weaker spouses. The article critiques the lack of legislative response to this problem, despite its significant implications for the equitable distribution of marital assets. The current legal framework, particularly the definition of "pension interest" and the provisions under sections 7(7) and 7(8) of the Divorce Act, is inadequate in addressing the complexities surrounding the sharing of retirement benefits in divorce cases. The article argues for a comprehensive review and reform of the law to ensure that retirement benefits are treated as patrimonial assets, subject to division upon the occurrence of any trigger event, such as resignation, retirement, or retrenchment. The need for such reform is urgent to prevent economically disadvantaged spouses from being unjustly deprived of their fair share of retirement benefits. In conclusion, the article advocates for legislative amendments to the Divorce Act, specifically section 7(7), to clarify that pension interests automatically form part of the joint estate, regardless of whether divorce proceedings are underway. This change would safeguard the financial rights of non-member spouses and ensure a more equitable distribution of retirement benefits during divorce. Failure to address this issue perpetuates economic inequality and leaves financially weaker spouses vulnerable during divorce proceedings.

Keywords: economically disadvantage spouses, pension interest, retirement, South African Law Reform commission

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Authors: M. Naidoo

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AI in healthcare can have a massive positive effect in low-resource states like South Africa, where patients outnumber personnel greatly. However, the complexity and ‘black box’ aspects of these technologies pose challenges for the liability regimes of states. This is currently being discussed at the international level. This research finds that within the South African medical negligence context, the current common law fault-based inquiry proves to be wholly inadequate for patient redress. As a solution to this, this research paper culminates in legal reform recommendations designed to solve these issues.

Keywords: artificial intelligence, law, liability, policy

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Authors: John Kong Shan Ho

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In June 2022, the Law Commission of England and Wales published an options paper to examine how the law on corporate criminal liability can be reformed under the English system. The paper merely details options for reform and does not seek to make recommendations. However, the paper has ruled out the “respondeat superior” approach of the US and “corporate culture” approach of Australia as reform options. On balance, the preferred reform option of the Law Commission is the “senior officer” approach as currently adopted in Canada. This article is written against such background and argues that due to similarities between the English and Canadian systems, the latter’s approach is more ideal to be adopted by the former as a model for reform in this area.

Keywords: corporate criminal liability, identification principle, directing mind and will, England, Canada

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Authors: Tapiwa Shumba

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The right to fairness and access to appeals and reviews enshrined under the South African Constitution seeks to ensure that justice is served. In essence, the constitution and the law have put in place mechanisms to ensure that a miscarriage of justice through wrongful convictions does not occur. However, once convicted and sentenced on appeal the procedural safeguards seem to resign as if to say, the accused has met his fate. The challenge with this construction is that even within an ideally perfect legal system wrongful convictions would still occur. Therefore, it is not so much of the failings of a legal system that demand attention but mechanisms to redress the results of such failings where evidence becomes available that a wrongful conviction occurred. In this context, this paper looks at the South African criminal procedural mechanisms for litigating innocence post-conviction. The discussion focuses on the role of section 327 of the South African Criminal Procedure Act and its apparent shortcomings in providing an avenue for victims of miscarriages to litigate their innocence by adducing new evidence at any stage during their wrongful incarceration. By looking at developments in other jurisdiction such as the United Kingdom, where South African criminal procedure draws much of its history, and the North Carolina example which in itself was inspired by the UK Criminal Cases Review Commission, this paper is able to make comparisons and draw invaluable lessons for the South African criminal justice system. Lessons from these foreign jurisdictions show that South African post-conviction criminal procedures need reform in line with constitutional values of human dignity, equality before the law, openness and transparency. The paper proposes an independent review of the current processes to assess the current post-conviction procedures under section 327. The review must look into the effectiveness of the current system and how it can be improved in line with new substantive legal provisions creating access to DNA evidence for post-conviction exonerations. Although the UK CCRC body should not be slavishly followed, its operations and the process leading to its establishment certainly provide a good point of reference and invaluable lessons for the South African criminal justice system seeing that South African law on this aspect has generally followed the English approach except that current provisions under section 327 are a mirror of the discredited system of the UK’s previous dispensation. A new independent mechanism that treats innocent victims of the criminal justice system with dignity away from the current political process is proposed to enable the South African criminal justice to benefit fully from recent and upcoming advances in science and technology.

Keywords: innocence, forensic law, post-conviction remedies, South African criminal justice system, wrongful conviction

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Authors: Meshandren Naidoo

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An artificial intelligence (AI) system named DABUS 2021 made headlines when it became the very first AI system to be listed in a patent which was then granted by the South African patent office. This grant raised much criticism. The question that this research intends to answer is (1) whether, in South African patent law, an AI can be an inventor. This research finds that despite South African law not recognizing an AI as a legal person and despite the legislation not explicitly allowing AI to be inventors, a legal interpretative exercise would allow AI inventorship.

Keywords: artificial intelligence, creativity, innovation, law

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Authors: Meshandren Naidoo

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An artificial intelligence (AI) system named DABUS 2021 made headlines when it became the very first AI system to be listed in a patent which was then granted by the South African patent office. This grant raised much criticism. The question that this research intends to answer is (1) whether, in South African patent law, an AI can be an inventor. This research finds that despite South African law not recognising an AI as a legal person and despite the legislation not explicitly allowing AI to be inventors, a legal interpretative exercise would allow AI inventorship.

Keywords: artificial intelligence, intellectual property, inventorship, patents

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Authors: Theo Neethling

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The United States Africa Command (AFRICOM) was established in 2007 as a military and diplomatic entity and is intended to assist African states and military actors to address their security needs. At the same time, AFRICOM is clearly an extension of US strategic interests on the African continent. The challenge for the US Department of Defence is to project AFRICOM as a cooperative and willing partner. This implies a partner that offers needed services and resources, and supports African security and military priorities with no presumption of having a privileged role in defining the African future. However, one of AFRICOM’s main challenges relates to the point that it has not been able to secure a firm partnership with South Africa as a key player on the continent: South Africa has continuously taken a lukewarm, if not cold, approach towards AFRICOM since its formation. The main aim of this article is to examine and discuss South Africa’s political-military relations with AFRICOM and to assess the underlying reasons currently inhibiting AFRICOM from achieving a fully productive relationship with the South African government.

Keywords: AFRICOM, South African foreign policy, US interests, defence capabilities in Africa, US-Africa relations

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Authors: Roxan Venter

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Ombudsmen often face the challenge of a lack of authority to have their decisions and recommendations enforced. This lack of authority may be seen as one of the major obstacles in the way of the effectiveness of the institutions of Ombudsman and also the South African Public Protector. The paper will address the current legal position in South Africa with regard to the status of the decisions and recommendations of the South African Public Protector and the enforcement thereof. In addition, the paper will compare the South African position with the experiences of other jurisdictions, including Scandinavian countries like Sweden, Denmark and Norway, but also New Zealand and Northern Ireland, with regard to the enforcement of the decisions of Ombudsmen. Finally, the paper will make recommendations with regard to the enhancement of the power and authority of Ombudsmen in order to effectively enforce their decisions. It is submitted that the creation of the office of Ombudsman, and the Public Protector in the South African system, is an essential tool to ensure the protection of society against governmental abuse of power and it is therefore imperative to ensure that these watchdogs of democracy are not muzzled by a lack of powers of enforcement.

Keywords: enforcement of decisions of ombudsmen, governmental control, ombudsman, South African public protector

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Authors: E. O. George, P. Ojeaga, D. Odejimi, O. Mattehws

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Has macroeconomic management succeeded in making privatization promote growth in Africa? What are the probable strategies that should accompany the privatization reform process to promote growth in Africa? To what extent has the privatization process succeeded in attracting foreign direct investment to Africa? The study investigates the relationship between macroeconomic management and privatization. Many African countries have embarked on one form of privatization reform or the other since 1980 as one of the stringent conditions for accessing capital from the IMF and the World Bank. Secondly globalization and the gradually integration of the African economy into the global economy also means that Africa has to strategically develop its domestic market to cushion itself from fluctuations and probable contagion associated with global economic crisis that are always inevitable Stiglitz. The methods of estimation used are the OLS, linear mixed effects (LME), 2SLS and the GMM method of estimation. It was found that macroeconomic management has the capacity to affect the success of the privatization reform process. It was also found that privatization was not promoting growth in Africa; privatization could promote growth if long run growth strategies are implemented together with the privatization reform process. Privatization was also found not to have the capacity to attract foreign investment to many African countries.

Keywords: Africa, political economy, game theory, macroeconomic management and privatization

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Authors: Vandeyar Saloshna, Vandeyar Hirusellvan

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The image of post-apartheid South African Society that is reflected in the social mirror of the world is largely one of hope, faith, and aspiration. But is this reality? Utilizing social constructivism, case study approach and narrative inquiry, this chapter set out to explore the reflection of South African students from the lens of immigrant students. The picture that unfolds is troublesome in its negativity. In this chapter, we establish in detail what this picture is about and what implications it holds for South African Society.

Keywords: immigrant students, social mirror, xenophobia, identity formation, makwerekwere, expectations

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Authors: Tara Panday, Despina Learmonth

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Sex work is often constructed as being an interaction between male clients and female sex workers. As a result, street-based male sex workers are continuously overlooked in the South African literature. This qualitative study explored male sex workers’ subjective experiences and constructions of their male clients’ identities and the client-sex worker relationship. This research was conducted from a social-constructionist perspective, which allowed for a deeper understanding of the reasons and context driving the choices and actions of male sex workers. Semi-structured face-to-face interviews were conducted with 10 South African men working as sex workers in Cape Town. Data was analysed through thematic analysis. The findings of the study construct the client-sex worker relationship in terms of a professional relationship, constrained choice, sexual identity and need, as well as companionship for pay, potentially highlighting underlying reasons for supply and demand. The data which emerged around the client-sex worker relationship and the clients’ identities also served to illuminate the power-dynamics in the client-sex worker relationship. This data increases insight into the exploitation and disempowerment experienced by male sex workers through verbal abuse, physical and sexual violence, and unfairly enforced laws and regulations. The findings of this study suggest that, in the context of South Africa, male sex workers' experiences of the client-sex worker relationship cannot be completely understood without considering the intersectionality of the triple stigmatisation of: the criminality of sex work, race, and the lack of economic power, which systematically maintains marginalization. Motivating for the Law Reform Commission to continue to review all emerging research may assist with guiding related policy and thereby, the provision of equal human rights and adequate health and social interventions for all sex workers in South Africa.

Keywords: human rights, prostitution, power relations, sex work

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Authors: Nkosingiphile M. Mbhele, Jean Steyn

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A focus group discussion was implemented, which comprised of senior South African Police Service managers and police academics in South Africa. The measurement of solidarity, isolation, and cynicism among functional South African Police Service officials and a thirty-item questionnaire came about by reviewing the literature. This research uses a survey format to assess the police culture theme of solidarity, isolation, and cynicism among South African Police Service officers in 9 South African provinces. Although a survey format is used in research, it engages in a quasi-experimental pre-test/post-test repeated measures research (longitudinal) design. Although there are differences among South African Police Service police (SAPS) officers, overall, there are signs of solidarity, isolation, and cynicism among SAPS members. Attitudes of solidarity, isolation, and cynicism are present among most police officials and have been presented from the start of training and held, maintained, or strengthened for the next years of their SAPS careers. This issue is problematic to society with regard to community-orientated policing since they have to interact with the members of the community. To author’s best knowledge, longitudinal studies of police culture are rare to find; not much has been researched on this topic. However, this paper offers to bridge that gap by providing answers to longitudinal police attitudes towards the public within the police culture themes of isolation and cynicism attitudes.

Keywords: South African police service, police culture, solidarity, isolation, cynicism, public

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Authors: Mesias Alfeus, Kirsty Fitzhenry, Alessia Lederer

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The present paper provides empirical studies to estimate defaultable bonds in the South African financial market. The main goal is to estimate the unobservable factors affecting bond yields for South African major banks. The maximum likelihood approach is adopted for the estimation methodology. Extended Kalman filtering techniques are employed in order to tackle the situation that the factors cannot be observed directly. Multi-dimensional Cox-Ingersoll-Ross (CIR)-type factor models are considered. Results show that default risk increased sharply in the South African financial market during COVID-19 and the CIR model with jumps exhibits a better performance.

Keywords: default intensity, unobservable state variables, CIR, α-CIR, extended kalman filtering

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Authors: Natanya Meyer, Johann Landsberg

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Unemployment among the youth is a significant problem in South Africa. Large corporations and the public sector simply cannot create enough jobs. Too many youths in South Africa currently do not consider entrepreneurship as an option in order to become independent. Unlike the youth of the Netherlands, South African youth prefer to find employment in the public or private sector. The Netherlands has a much lower unemployment rate than South Africa and the Dutch are generally very entrepreneurial. From early on entrepreneurship is considered a desirable career option in the Netherlands. The purpose of this study was to determine whether there is a difference in the perceptions of some Dutch and South African students in terms of unemployment and entrepreneurship. Questionnaires were distributed to students at the North West University's Vaal Triangle campus in Vanderbijlpark in Gauteng, South Africa and the Technical University of Delft in the Netherlands. A descriptive statistical analysis approach was followed and the means for the independent questions were calculated. The results demonstrate that the Dutch students are not as concerned about unemployment after completion of their studies as this is not as significant a problem as it is in South Africa. Both groups had positive responses towards the posed questions, but the South African group felt more strongly about the issues. Both groups of students felt that there was a need for more practical entrepreneurship training. The South African education system should focus on practical entrepreneurship training from a young age.

Keywords: entrepreneurship development, entrepreneurship development programmes, entrepreneurship intention, Netherlands, South Africa, unemployment

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Authors: Albert Herve Nkolo Mpoko

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The Foreign Direct Investment (FDI) landscape in Cameroon has garnered significant attention from both European and Asian nations due to perceived benefits such as capital infusion, technology transfer, and potential for economic expansion. However, it is noteworthy that South Africa's investment presence remains comparatively subdued in Cameroon, lagging behind that of Europe and Asia. Equally surprising is the limited footprint of Africa's economic powerhouse within other African economies. This study delved into four specific facets of South African investment in Cameroon. Initially, it focused on identifying South African companies operating within Cameroon. Subsequently, the analysis encompassed assessing the correlation between South African investment and poverty alleviation. Additionally, the study examined the nexus between South African investment and technological advancement, and underscored the significance of investment incentives in both countries Key findings of the research shed light on several crucial points. South Africa ought to reassess its economic engagement with Francophone Africa, particularly Cameroon. Despite existing policies aimed at fostering investment, there remains substantial ground to cover in this realm. The proliferation of South African enterprises in Cameroon holds the potential to ameliorate poverty and foster employment opportunities across both nations. The advent of South African firms in Cameroon can catalyse technological advancements within the region. Data collection involved surveying 100 executives from the respective administrations and conducting ten interviews. The gathered data underwent triangulation, wherein quantitative findings were juxtaposed with qualitative insights. In conclusion, the study underscores the underutilization of Cameroon by South Africa, emphasizing the untapped potential for mutual economic growth. Furthermore, it posits that the success of South Africa's multinational corporations abroad could serve as a pivotal pillar for sustaining its domestic economy.

Keywords: FDI, transfer of technology, South-South cooperation, mutual economic growth

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Authors: Mncedisi Trinity Dewa, Andre Francois Van Der Merwe, Stephen Matope

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Tool, Die and Mould-making (TDM) firms have been known to play a pivotal role in the growth and development of the manufacturing sectors in most economies. Their output contributes significantly to the quality, cost and delivery speed of final manufactured parts. Unfortunately, the South African Tool, Die and Mould-making manufacturers have not been competing on the local or global market in a significant way. This reality has hampered the productivity and growth of the sector thus attracting intervention. The paper explores the shortcomings South African toolmakers have to overcome to restore their competitive position globally. Results from a global benchmarking survey on the tooling sector are used to establish a roadmap of what South African toolmakers can do to become a productive, World Class force on the global market.

Keywords: competitive performance objectives, toolmakers, world-class manufacturing, lead times

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Authors: Hebert Sihle Ntuli

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Traditional cultural practices mirror or replicate the values and beliefs held by members of the community. Throughout the world, every social grouping has specific traditional practices, some of which are beneficial to all, while others have become harmful to specific group such as women. Like in some African states, these traditional cultural practices are performed in South Africa and are violating women’s rights. Women’s rights are human rights. The South African Constitution is one of the most progressive in the world, and notable includes the Bill of Rights which provides protection of socio-economic and cultural rights. Cultural rights are protected in Section 30 and 31 of the constitution, although such protection is not without limitation. This highly complex interplay and competition between human rights and cultural rights, which are manifested through cultural practices, is the golden thread that traces through this paper. The paper argues that there is conflict and the lack of balance between diverse cultural and legal or constitutional framework which promotes the value of human dignity and equality, especially for women. These practices are reviewed in connection with the South African government laws. This work adopted qualitative research method.

Keywords: cultural practices, conflict, South African constitution, laws

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Authors: Aisha Adam

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This study critically examines the transformative impact of automated decision-making (ADM) and artificial intelligence (AI) systems on South African labour law. As AI technologies increasingly infiltrate workplaces, existing liability frameworks face challenges in addressing the unique complexities presented by these innovations. This article explores the necessity of redefining liability to accommodate the nuanced landscape of ADM and AI within South African labour law. It emphasises the importance of ensuring responsible deployment and safeguarding the rights of workers amid evolving technological dynamics. This research investigates the central concern of fairness, bias, and discrimination in ADM and AI decision-making. Focusing on algorithmic bias and discriminatory outcomes, the paper advocates for the integration of mechanisms within the South African legal framework, particularly under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and the Employment Equity Act (EEA). The study scrutinises the shifting dynamics of the employment relationship, calling for clear guidelines on the responsibilities and liabilities of employers, employees, and technology providers. Furthermore, the article analyses legal and policy responses to ADM and AI within South African labour law, exploring potential amendments to legislation, guidelines, and codes of practice. It assesses the role of regulatory bodies, specifically the Commission for Conciliation, Mediation, and Arbitration (CCMA), in overseeing and enforcing responsible practices in the workplace. Lastly, the research evaluates the impact of ADM and AI on human and social rights in the South African context. Emphasising the protection of constitutional rights, including fair labour practices, privacy, and equality, the study proposes remedies and safeguards. It advocates for a multidisciplinary approach involving legal, technological, and ethical considerations to redefine liability in South African labour law effectively. The article contends that a shift from accountability to responsibility is crucial for promoting fairness, antidiscrimination, and the protection of human and social rights in the age of automated decision-making. It calls for collaborative efforts among stakeholders to shape responsible practices and redefine liability in this evolving technological landscape.

Keywords: automated decision-making, artificial intelligence, labour law, vicarious liability

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Authors: Keo Mbebe

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The South African Truth and Reconciliation Commission (TRC) is widely regarded as a blueprint for countries seeking to transcend the atrocities of their past and create a new human rights-based administration. The aim of these societies is to establish historical truth. Within the TRC, the aspects of truth-finding and truth-telling were considered to be catalysts for national unity and reconciliation. Truth-seeking, in addition, was mandated in the Promotion of National Unity and Reconciliation Act (TRC Act), which is the legislation behind the TRC. However, there is an incongruency between the conception of truth outlined in the Act, and the conception of truth explained in the Report of the TRC proceedings. The aim of this paper is to delineate these two kinds of “truth” and to critically analyze them. Doing so, it will then be evident in the discussion that there is a need for substantial clarity in the conception of truth used in transitional justice settings based on truth-finding and truth-seeking, and the paper will present ways in which such clarity may be achieved. The paper will begin with a philosophical engagement on the notion of historical truth used by the TRC legislation. Thereafter, the historical background to the political context in which the TRC Act was mandated will be provided. The next section would then be a sketch of the conceptions of historical truth and historical injustice in the Act, as well as its supporting documents. Lastly, it will be argued that the subversion of the TRC’s mandate to promote reconciliation and national unity by bringing to light past human rights violations during apartheid is betrayed by its amorphous conception of historical truth.

Keywords: historical truth, human rights, transitional justice, truth commission

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Authors: Obinna Emmanuel Nkomadu

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A major maritime problem in the African continent is the widespread proliferation of threats to maritime security, and one of which is the traffic in persons (TIP) at sea, which victims are sometimes assaulted, injured, killed, and in many cases go missing. The South African and Nigerian law on TIP at sea is the Prevention and Combating of Trafficking in Persons Act and the Trafficking in Persons (Prohibition) Enforcement and Administration Act, respectively. These legislation prohibits TIP at sea but does not provides effective and efficient national coordination structures and international cooperation measures against traffickers who engage on human trafficking on the African maritime domain. As a result of the limitations on the maritime security laws of most African States and the maritime security threats on the continent, the African Union in 2016 adopted the African Charter on Maritime Security and Safety and Development in Africa (Lome Charter). The Lomé Charter provides mechanisms for national and international cooperation on maritime security threats, including TIP at sea. However, the Charter is yet to come into force due to the number of States required to accede or ratify the Charter. This paper identifies gaps on existing instruments on TIP at sea by those States and justify on South Africa and Nigeria should adopt the Charter. The justification flow from analysing relevant international law instruments, as well as legislation on human trafficking.

Keywords: cooperation against trafficking in persons at sea, lomé charter, maritime security, Nigerian legislation on trafficking in persons, South African legislation on trafficking in person, and trafficking in persons at sea

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Authors: Noorjehan Joosub-Vawda

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Objectives: The aim of this poster presentation is to examine cultural contextual understandings of ABI that could aid conceptualisation and the development of a model for neuropsychological rehabilitation in this context. Characteristics of the South African context that make the implementation of international NR practices difficult include socioeconomic disparities, sociocultural influences, lack of accessibility to healthcare services, and poverty and unemployment levels. NR services in the developed world have characteristics such as low staff-to-patient ratios and interdisciplinary teams that make them unsuitable for the resource-constrained South African context. Methods: An exploratory, descriptive research design based on programme theory is being followed in the development of a South African model of neuropsychological rehabilitation. Results: The incorporation of African traditional understandings and practices, such as beliefs about ancestral spirits in the etiology of Acquired Brain Injury are relevant to the planning of rehabilitation interventions. Community-Based Rehabilitation workers, psychoeducation, and cooperation among the different systemic levels especially in rural settings is also needed to improve services offered to patients living with ABI. Conclusions. The preliminary model demonstrated in this poster will attempt to build on the strengths of South African communities, incorporating valuable evidence from international models to serve those affected with brain injury in this context.

Keywords: neuropsychological rehabilitation, South Africa, acquired brain injury, developing context

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Authors: Jacolien Barnard, Corlia Van Heerden

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Effective and accessible consensual dispute resolution and in particular alternative dispute resolution, are central to consumer protection legislation. In this regard, the Consumer Protection Act 68 of 2008 (CPA) of South Africa is no exception. Due to the nature of consumer disputes, alternative dispute resolution (in theory) is an effective vehicle for the adjudication of disputes in a timely manner avoiding overburdening of the courts. The CPA sets down as one of its core purposes the provision of ‘an accessible, consistent, harmonized, effective and efficient system of redress for consumers’ (section 3(1)(h) of the CPA). Section 69 of the Act provides for the enforcement of consumer rights and provides for the National Consumer Commission to be the Central Authority which streamlines, adjudicates and channels disputes to the appropriate forums which include Alternative Dispute Resolution Agents (ADR-agents). The purpose of this paper is to analyze the regulation of these enforcement and redress mechanisms with particular focus on the Central Authority as well as the ADR-agents and their crucial role in successful and efficient adjudication of disputes in South Africa. The South African position will be discussed comparatively with the European Union (EU) position. In this regard, the European Union (EU) Directive on Alternative Dispute Resolution for Consumer Disputes (2013/11/EU) will be discussed (The ADR Directive). The aim of the ADR Directive is to solve contractual disputes between consumers and traders (suppliers or businesses) regardless of whether the agreement was concluded offline or online or whether or not the trader is situated in another member state (Recitals 4-6). The ADR Directive provides for a set of quality requirements that an ADR body or entity tasked with resolving consumer disputes should adhere to in member states which include regulatory mechanisms for control. Transparency, effectiveness, fairness, liberty and legality are all requirements for a successful ADR body and discussed within this chapter III of the Directive. Chapters III and IV govern the importance of information and co-operation. This includes information between ADR bodies and the European Commission (EC) but also between ADR bodies or entities and national authorities enforcing legal acts on consumer protection and traders. (In South Africa the National Consumer Tribunal, Provincial Consumer Protectors and Industry ombuds come to mind). All of which have a responsibility to keep consumers informed. Ultimately the papers aims to provide recommendations as to the successfulness of the current South African position in light of the comparative position in Europe and the highlight the importance of proper regulation of these redress and enforcement institutions.

Keywords: alternative dispute resolution, consumer protection law, enforcement, redress

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Authors: Mokgata Matjie, Sibo Mayime

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The 4IR brought with it an inevitable need for change in all organisations, regardless of sector. As a member of the global community, South African organisations are bound to experience the 4IR pressure, and the need to digitize becomes unavoidable. The South African government sector has various departments, of which one of them is the land administration solely responsible for the registration, management, and maintenance of the property registry of South Africa. For the past many years, the registration of deeds was done manually, ranging from 7-10 days, with lots and loads of paperwork handled manually by conveyancers and Registry Clerks. Some information might get lost during the registration period, thus delaying the whole process. This conceptual paper proposes ways to digitalize the land administration office by consulting all relevant literature and ultimately developing a theoretical change management framework for all public sector organisations in South Africa. Change is inevitable, but careful consideration is necessary in terms of consulting all relevant stakeholders for their buy-in and successful implementation of digitalization. The developed framework will serve as a theoretical basis for the empirical research envisaged as a PhD study.

Keywords: stakeholders, engagement, change management, land administration, digitalisation, South African public sector

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Authors: A. Bayaga

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This research provides a technical account of estimating Transition Probability using Time-homogeneous Markov Jump Process applying by South African HIV/AIDS data from the Statistics South Africa. It employs Maximum Likelihood Estimator (MLE) model to explore the possible influence of Transition Probability of mortality cases in which case the data was based on actual Statistics South Africa. This was conducted via an integrated demographic and epidemiological model of South African HIV/AIDS epidemic. The model was fitted to age-specific HIV prevalence data and recorded death data using MLE model. Though the previous model results suggest HIV in South Africa has declined and AIDS mortality rates have declined since 2002 – 2013, in contrast, our results differ evidently with the generally accepted HIV models (Spectrum/EPP and ASSA2008) in South Africa. However, there is the need for supplementary research to be conducted to enhance the demographic parameters in the model and as well apply it to each of the nine (9) provinces of South Africa.

Keywords: AIDS mortality rates, epidemiological model, time-homogeneous markov jump process, transition probability, statistics South Africa

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Authors: Livhuwani Muthelo, Tebogo Maria Mothiba, Rambelani Nancy Malema

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Background: Despite occupational legislation/standards being in place in the industry, there are many reported health and safety incidents, including both occupational injuries and illnesses in the South African mining industry. Purpose: This systematic literature review aimed to describe and identify the existing gaps in health and safety compliance within the South African mining industry and propose future research areas. Methodology: A systematic literature review was conducted using the key concepts of health and safety, compliance, standards, and mining. A total of 102 papers issued from 1994 to April 2020 were extracted from an online database search, which included a combination of South African and international government OHS legislation documents, policies, standards, reports from the mineral departments and international labour office, qualitative and quantitative journal articles, dissertations, seminars and conference proceedings. Results: The literature review revealed that, though there are laws, regulations, standards to guide the industry on health and safety issues in South Africa, the main challenge is with the compliance with the existing health and safety systems, wherein systems are not being implemented. Conclusion: Gaps between research, policy, and implementation in occupational health practice in the South African mining industry were also identified.

Keywords: circumstances, non-compliance, health and safety, standards, mining industry

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Authors: Foluke Abimbola

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There are two separate groups of a recognised body of human rights. These are known as Civil and Political Rights, and Economic and Social Rights. There is however an impression that civil and political rights are enforceable in courts while socio-economic rights are not. Nigeria is an example of one of such countries whose constitution has social, economic and cultural rights’ provisions as well as civil and political rights. However, the socio-economic rights provided in the Nigerian constitution are not justiciable or are unenforceable in a court of law. On the other hand, a comparative examination of the socio-economic right provisions in the South African constitution and judgments of the constitutional court of South Africa reveals that socio-economic rights may be enforceable. This position may ensure the protection of the socio-economic rights of the poor and vulnerable groups. These rights include the rights to food, adequate shelter, health, and education. Moreover, the African Charter on Human and Peoples’ Rights (African Charter) which incorporates similar socio-economic right provisions, has been recognized as a domestic law in Nigeria and its provisions are enforceable by the domestic courts by virtue of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004. It is not only a regional treaty signed and adopted by Nigeria but has been passed into law by the National Assembly and can be enforced like any other local law. This paper will propose that in view of the provisions of the African Charter and mechanisms for implementation as well as other international conventions and national constitutional provisions on human rights, domestic courts may be able to assess state responsibilities in the light of socio-economic rights. Cases decided by South African courts and other jurisdictions will be discussed in order to lend weight to the notion that socio-economic rights can be enforced in jurisdictions such as Nigeria even though the constitution provides otherwise.

Keywords: african charter, constitutional court of south africa, nigerian constitution, socio-economic rights, south african constitution

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Authors: Alan Bhekisisa Buthelezi

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The aim of this paper is to explore African management and leadership philosophies at secondary schools in post-apartheid South Africa. The research was conducted in the King Cetshwayo district of KwaZulu-Natal province in South Africa. Apart from the literature on participative management, the paper reports on a research in which an empirical investigation based on a quantitative research paradigm was used to collect data from secondary school principals. The literature findings revealed that secondary school principals need to rethink their management and leadership philosophies in the twenty-first century. The findings of this research further reveal that ubuntu (humanness) and lekgotla (Sesotho term for “an African participatory approach to decision-making”) should be embedded in the art of school management and leadership in the South African context. The paper concludes with the submission that ongoing capacity-building workshops should be fast-tracked on matters pertaining to management and leadership.

Keywords: distributed leadership, team leadership, decentralization of power, transformational leadership

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Authors: Damien Kunjal, Faeezah Peerbhai

Abstract:

Despite the increasing popularity of exchange-traded funds (ETFs), ETF investment choices may not always be rational. Excess trading volume, misevaluations of securities, and excess return volatility present in financial markets can be attributed to the influence of the overconfidence bias. Whilst previous research has explored the overconfidence bias in stock markets; this study focuses on trading in ETF markets. Therefore, the objective of this study is to investigate the presence of investor overconfidence in the South African ETF market. Using vector autoregressive models, the lead-lag relationship between market turnover and the market return is examined for the market of South African ETFs tracking domestic benchmarks and for the market of South African ETFs tracking international benchmarks over the period November 2000 till August 2019. Consistent with the overconfidence hypothesis, a positive relationship between current market turnover and lagged market return is found for both markets, even after controlling for market volatility and cross-sectional dispersion. This relationship holds for both market and individual ETF turnover suggesting that investors are overconfident when trading in South African ETFs tracking domestic benchmarks and South African ETFs tracking international benchmarks since trading activity depends on past market returns. Additionally, using the global recession as a structural break, this study finds that investor overconfidence is more pronounced after the global recession suggesting that investors perceive ETFs as risk-reducing assets due to their diversification benefits. Overall, the results of this study indicate that the overconfidence bias has a significant influence on ETF investment choices, therefore, suggesting that the South African ETF market is inefficient since investors’ decisions are based on their biases. As a result, the effect of investor overconfidence can account for the difference between the fair value of ETFs and its current market price. This finding has implications for policymakers whose responsibility is to promote the efficiency of the South African ETF market as well as ETF investors and traders who trade in the South African ETF market.

Keywords: exchange-traded fund, market return, market turnover, overconfidence, trading activity

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Authors: Lizelle Ramaccio Calvino

Abstract:

Article 3 of the United Nations Convention on the Rights of Child states that 'The best interests of the child must be a top priority in all decisions and actions that affect children.' This stance is also echoed in terms of article 20 of the African Charter on the Rights and Welfare of the Child. South Africa, as a signatory of the aforesaid international and national conventions, constitutionalised the best interest of the child in terms of section 28(2) of the Republic of South Africa, 1996. Section 28(2) provides that '[A] child’s best interests are of paramount importance in every matter concerning the child.' The application of 'the best interests of the child' principle is consequently applicable in all fields of South African law, including matrimonial law. Two separate but equal Acts regulate civil marriages in South Africa, namely the Marriage Act 25 of 1961 and the Civil Union Act 17 of 2006. Customary marriages are regulated by the Recognition of Customary Marriages Act 120 of 1998. In terms of the Marriage Act and the Recognition of Customary Marriages Act, a minor may (provided he/she obtains the required consent) enter into a marriage. Despite the aforesaid, section 1 of the Civil Union Act categorically prohibits a minor from entering into a civil union. The article will first determine whether the ban of minors from entering into a civil union undermines the 'the best interests of the child' principle, and if so, whether it is in violation of the Constitution as well as international and national conventions. In addition, the article will critically analyse whether the application of the Marriage Act and the Civil Union Act (dual Acts) result in disparity within the South African marriage law framework, and if so, whether such discrepancy violates same-sex couples’ right (in particular a same-sex minor) to equality before the law and to have their dignity protected. The article intends, through the application of a qualitative research methodology and by way of a comparative analyses of international and domestic laws, consider whether a single well-defined structure such as the Dutch marriage law system would not be an improved alternative to address the existing paradox resulting from the application of an Act that undermines 'the best interest of the child' principle. Ultimately the article proposes recommendations for matrimonial law reform.

Keywords: best interests of the child, civil marriage, civil union, minor

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Authors: M. Naidoo

Abstract:

The concept of moral personhood extending from the moral status of an artificial intelligence system has been explored – but predominantly from a Western conception of personhood. African personhood, however, is distinctly different from Western personhood in that communitarianism is central to the underpinnings of personhood - rather than Western individualism. Personhood in the African context is not an inherent property that a human is born with; rather, it is an ontological journey that one goes on in his or her life with the hopes of attaining personhood. Given the decolonization, projects happening in Africa, and the law-making that is happening in this space within South Africa, it is of paramount importance to consider these views.

Keywords: artificial intelligence, bioethics, law, legal personality

Procedia PDF Downloads 83