About the publication It is with great joy that I, along with the editorial committee, present to you, reader, the 2017 Pretoria Student Law Review. On this journal’s 11th edition, it has been an expansive year with a wider variety of topics being researched and produced by our authors. As law students, young scholars and future legal practitioners, we have a duty to utilise the unique position that we are in to challenge the status quo. Fittingly, the topics covered prove themselves to be contemporary and legally pertinent and encourage critical thinking of the law and its place in South African society. This year has not only been a challenging one for students, staff and parents but also for the citizens of South Africa as a whole. It is thus with even greater pleasure that we offer our humble contribution to legal academia. Every year of publication faces its own challenges, and this year was no different. However, it is through setbacks and ambitious deadlines that which makes a finalised product that much more deserved. This year’s edition touches on a variety of themes which is certain to pique anyone’s interest. This year’s edition of the PSLR would not have been possible without the dedication and hard work of a particularly motivated and dedicated team. To Simon Botha, Privilege Chanana, Rutendo Chinomona, Roxanne Gilbert, Lethabo Mailula, Agnes Matasane, Raeesah Thomas, Thomas White and Jurgen Zwecker for your long hours and persistence in the production of this year’s edition. You all have contributed to the mechanism of this wonderful team and it has been a privilege to have worked with you. I would further like to thank the authors for their submissions and tireless efforts to produce quality articles. My further thanks to Prof Andre Boraine and Lizette Hermann for their consistent guidance and leadership this year. This year’s edition would not be the success it is without their encouragement and input this year. A further thank you to Prof Philip Stevens for his contributions and input. I would also like to thank Adebayo Okeowo for his contribution for the cover for this year’s edition. I trust you, the reader, will find the included articles as insightful and though-provoking as the editorial team did. Sarah Burford Managing editor Table of Contents Editors’ note Sarah Burford From the Dean’s desk Andre Boraine Media freedom in Kenya in 2017: A reality or a mirage? Shirley Genga Re-imagining a culture of justification through transformative constitutionalism and the philosophy of ubuntu Ofentse Thato Kgabo The effects of public participation on environmental impact assessment Amori Kock A comparative analysis of the UNICITRAL Model Law on Cross-Border Insolvency and EU Insolvency Regulation 2017, against the background of various sources of cross-border insolvency law Primrose E.R. Kurasha Anti-doping: The credibility of the Whereabouts rule Primrose E.R. Kurasha Tax morality: Examining the BEPS debate, work of the OECD and its impact on Africa Daniel Godson Olika Marikana, a past never truly escaped: A critique on the commodification of the legal system and the law as an instrument of justice in post-apartheid South Africa Vaughn Rajah Administrative law — a tool for social justice and transformative constitutionalism: The implications of Melani v City of Johannesburg Nelsie Siboza Reflection and cogitation on the fallacy of postapartheid jurisprudence and the residue of apartheid jurisprudence: The Marikana massacre Tshepo Twala
About the publication Honoured to present to you, the reader, the 2020 edition of the Pretoria Student Law Review (PSLR), an annual publication which is the pride of the best law faculty in Africa (according to the Times Higher Education World University Rankings). The University of Pretoria’s Law Faculty ranks in the top 100 law faculties in the world, a feat unequalled in Africa. The PSLR is a student driven law review that creates an interactive forum for students, academics and legal professionals to discuss topical legal matters that challenge the status quo. At the beginning of this year, lay the fantasy of newness — presenting an opportunity to do great things. But as I reflect on the journey leading to this publication, I understand that the 2020 edition of the PSLR had an engine that ran on hope; faith; dedication; perseverance; commitment and hard work. Our predecessors had a vision to create a boldly outlined legacy for the PSLR, they spearheaded the setting up of a system that would last the lifespan of the PSLR. Today, some 13 years after the first edition of the PSLR, South Africa, the continent and the world at large are on the cusp of a new era — socially, economically and politically. When my journey as Editor-in-Chief commenced, I imagined the PSLR as a ship, whose captain was myself. Customarily, it is easy to be a captain of a ship in calm seas, but unlike most of my predecessors, I have had to be the captain of a ship through the heftiest of storms. The world was not truly prepared to face challenges presented by the Covid-19, let alone the PSLR. In the wake of the 4IR and this new age of technology, sailing this ship to success was still a heavy task to complete. It is therefore with great honour to have been able to successfully complete the task for which we, the 14th cohort of the Editorial Board, were called for. We have upheld the esteemed reputations that have been left by our predecessors. Fittingly, I wish to applaud my team for their inspiring commitment, outstanding contribution and service in maintaining the elevated standard of the PSLR. For indeed it is a publication, par excellence. Amidst the storms, we have spearheaded the establishment of a ‘free-floating’ PSLR Collection in the OR Tambo Law Library. This collection is dedicated to house all published PSLR editions, dating since the inception of the PSLR in 2007. We have established and strengthened relations with other Law Faculties in the country, and even beyond. We published the very first special edition of the PSLR, a focused edition that covers a critical issue brought before the South African Law Deans Association — the Decolonisation of Legal Education. We have established a system by which all authors who publish with us, ought to have an ORCID iD. We have adopted internal regulations that outline the principles that govern the Editorial Board. We have spearheaded the adoption and implementation of a policy that forces us to comply with DHET Standards in order to be a DHET Accredited Journal so as to encourage and foster a student culture of critical research & writing in legal academia. I am truly proud of the work that the authors have put into their articles and I would like to thank them for their submissions and tireless efforts to produce quality articles. More-so, I am proud of the Editorial Board for being able to work under immense pressure. This edition would have not been possible without the dedication and hard work of this dream team. I remain indebted to you all: Adelaide Chagopa, Kayla Thomas, Marcia van der Merwe, Nicholas Herd and Phenyo Sekati. It has been a great pleasure and a privilege to have worked with you on this annual edition. A note of thanks to Dr Gustav Muller in his capacity as the Guardian of the PSLR. To the reviewers, your adjudication lays the foundation for each edition, year-in-yearout. Your support and contribution to the PSLR remains invaluable. To Lizette Hermann, Elzet Hurter and Mornay Hassen, thank you for your continued and immeasurable support throughout this journey. To Primrose E.R Kurasha, thank you for believing in me and for guiding me. I am forever indebted to you my friend. To my family: Elizabeth Mtshweni; Jostina Mtshweni; Clayton Mtshweni; Lucas Berto Mateus; Stephine Mashilo and Lerato Mashilo, words cannot begin to express my gratitude for all the support you have given me throughout this journey. Thank you for keeping me sane through one of the toughest times of my ‘publishing’ career. Thank you for the endless amount of support and the unconditional love you give me always. You are the power & oil that kept this engine running, all by the sufficient grace of God. I hereby pass the baton and entrust the next Editor-in-Chief with the difficult task of running faster and running a better marathon than myself and my predecessors. To you future author, I implore you to start writing, for the water does not flow until the faucet is turned on. To you the reader, Jurgen Zwecker was right: enjoy the read — without fear to question what is in front of you, for that is the only way we, as scholars, grow. Simon Motshweni Editor-in-Chief 2020 Table of Contents Editors’ note by Simon Motshweni Statutory utility rights to realise access to services as a characteristic of adequate housing by Gustav Muller The experiences of women and barriers for career advancement in tertiary institutions in a South African context by Bernardete Mendes ‘I’ve changed’ says South African law: Has the judiciary opened up to black women lawyers? by Cebolenkosi Makhaye Sexual orientation and gender identities (SOGI) law and social change by Chanelle van der Linde Game of Thrones: The battle of the Mphephus by Gudani Tshikota Critical race theory and feminist legal theory: Perspectives on transformation of the judiciary by Hayley C. Warring International law rules relating to migration arising from rising sea-levels by Keketso G. Kgomosotho The constitutionality of warrantless search and seizure operations by Khalipha Shange The constitutionality of warrantless search and seizure operations by Lehlohonolo January A comparative analysis of the proposed mandatory nature of employment legislation and its interaction with the choice of law of an international contract by Marcia van der Merwe Property rights and the basic structure of the Constitution: The case of the Draft Constitution Eighteenth Amendment Bill by Martin van Staden Speak no law without justice: Evaluating the retrospective force of declarations of unconstitutionality with specific reference to Qwelane v SAHRC & Others (686/2018) [2019] ZASCA 167 194 by MP Fourie & Marno Swart A critique of the determination of a composite supply for VAT purposes in South Africa: Lessons from selected countries by Mzwandile Ngidi Workers of the world, un-united: A discussion through a gendered lens on why stronger protection of workers in the informal economy will better equip South Africa to cope with labour market changes of the Fourth Industrial Revolution by Shaniaé Maharaj Dismantling the status quo: Prohibiting unfair discrimination on the grounds of poverty under capitalism by Sohela Surajpal Neoliberalism and inequality in post-apartheid South Africa by Thabiso Mfete When life gives you law, make lemonade: Exploring the ‘legalised’ oppression of black women in the United States of America and South Africa and their musical response thereto by Thandeka N. Khoza The Fourth Industrial Revolution: A case for educational transformation by Thembekile M. Mtsweni The Gabriel Fernandez case: A comparative analysis of a ‘mandated reporter’ in light of the Children’s Act by Thiavna Subroyen Transformative adjudication and the place of administrative law in South African jurisprudence: ABSA Bank Limited v Public Protector by Tshepo Twala & Mpho Mogadime The pas de deux between education and recreation: Facilitating the realisation of Articles 11 and 12 of the African Charter on the Rights and Welfare of the Child in Schools by Thandeka N. Khoza & Cebolenkosi Zuma
About the publication I am delighted to present to you, the reader, the fifteenth edition of the Pretoria Student Law Review (PSLR) with its Special Section on ‘Social Justice and COVID-19’. This year’s Annual Edition, together with the developments made during the year, is a testament to the growth, resilience, and adaptability of this student-driven initiative especially during these turbulent times. This year has also been one of reflection and remembrance as we publish this edition in tribute to the late Professor Christof Heyns whose instrumentality in the establishment of the Pretoria University Law Press (PULP) has brought us to where we are today. Fourteen years since its inception and the PSLR still continues to grow and evolve whilst remaining true to its thriving legacy in fostering excellence and innovation through legal writing. This publication’s uniqueness is also presented through its diverse contributions all addressing contemporary societal and legal issues under a broad range of legal disciplines. In an era of many continued ‘firsts’, the PSLR has strived to build on the legacy of its predecessors by expanding on the Journal’s visibility and accessibility. The PSLR’s digital presence has now grown substantially leading to an increase in quality submissions from institutions across the country. This year, the PSLR launched its first independent website and developed an official logo for the Journal and its online platforms. Authors are now able to submit their papers through the Open Journals System platform, track their workflow, manage their submissions, and submit at any time outside of the PSLR’s official call for submissions. We can firmly submit that we have, in pursuance of being a DHET accredited journal, fulfilled the standards set out by the Department of Higher Education and Training. Many thanks are extended to Makone Maja for developing the website. Your patience, guidance, and geniality are truly appreciated. Thank you also to Jakolien Strydom and ClickCreate for your charitable assistance in developing and designing the logo. To the authors, this year has, in many respects, been challenging with many of those challenges affecting students directly. We appreciate the dedicated efforts put into your submissions and your wholehearted cooperation throughout the entire process. Much appreciation is also extended to the reviewers who have selflessly committed to assisting the PSLR during the peer-review process. To all of the reviewers, your input, guidance, and recommendations are greatly appreciated. Phenyo Nomasonto Morwesi Sekati Editor-in-Chief 2020
"Legal academics and practitioners in recent decades increasingly emphasize the so-called "globalization" of legal education. The diffusion of the Juris Doctor (JD) degree to Australia, Hong Kong, Japan and South Korea, as well as the advent of a very similar Juris Master (JM) degree in China and a shift in the late 1980s and beyond to a new, US-influenced format in India, exemplify shifts toward US legal education practices (Flood 2014). The global and Americanizing trend is evident on the web sites of law schools around the globe, with many law schools competing to be the most "global" in terms of their faculty, curricula, teaching methods, and students. Less pronounced but related to the literature on legal globalization is that on "transnationalization" and transnational processes, which is a strong component of the move toward globalization in legal education. As this book shows, if we look to see what is celebrated as part of globalized law schools and faculties, we see increased cross-border flows of professors and students, teaching of transnational legal subjects, development of particular forms of teaching practice such as legal clinics, explicit focus on transnational rankings, and transnationalized scholarly communities sharing teaching and research methods and approaches across domains of law"--
The PhD Experience in African Higher Education, edited by Ruth Murambadoro, John Mashayamombe, and uMbuso weNkosi, addresses the growing call to invest in the humanities and social sciences by exploring the nature of doctoral training in select institutions of higher learning in South Africa. In the past two decades, South Africa has become a key player in the global higher education landscape and dubbed the hub for doctoral training in Africa because of its developed educational infrastructure and highly ranked universities. Given South Africa’s positioning, the contributors in this volume argue that the government, donors, universities, and faculty have a socio-legal duty to ensure that doctoral programs in the humanities and social sciences are not offered to amass numbers of African graduates but are grounded on equipping students with both hard and soft skills necessary to succeed. This is achieved by offering skills training and research apprenticeships fostered in communities of practice because, as the contributors show, the humanities and social sciences are the backbone of society. Furthermore, they argue that treating doctoral candidates as equal partners is emancipatory because intellectual projects are best nurtured through collaborative learning.
Africa's contributions to global technological advancements are often overlooked, with many scholars claiming that the continent has yet to contribute significantly to digital technology. This misconception stems from a need for more understanding and recognition of Africa's indigenous knowledge and its role in shaping the modern world. The education curriculum inherited from colonialism must differentiate Africa's values and culture from Western ideals, leading to a devaluation of Africa's mineral wealth in technological advancements. Additionally, the impact of historical events such as the Atlantic slave trade and colonialism on Africa's indigenous knowledge remains largely unexplored, further contributing to the misunderstanding of Africa's technological contributions. Contributions of Africa's Indigenous Knowledge to the Wave of Digital Technology: Decolonial Perspectives offers a comprehensive exploration of Africa's indigenous knowledge and its crucial role in the Fourth Industrial Revolution (4IR). By taking a decolonial perspective and examining the literature on African Studies, the book aims to shed light on Africa's significant contributions to digital technology. Through a qualitative research design and an exploratory approach, the book will collect and analyze data from secondary sources to showcase Africa's rich technological advancements and history of innovations.
School education reform is a dynamic process. It takes place in the context of changing institutional structures including society, economy, politics, legislation, and technology. Yet, there can be poor awareness of risk, particularly social risk, and its management during this process and more widely, during public service reform (PSR). This book aims to promote new PSR understanding about social risk management. It utilizes in-depth case studies comprising two anonymous Scottish councils responsible for providing and reforming school education services. Drawing mainly on risk management and structuration theories with elements of complexity leadership and institutional theories, the book explains contextual issues around the reform of Scottish school education services (SSES). It illustrates that social risks associated with reform can be used to explain emerging threats. Furthermore, it demonstrates that agent-structure duality may be instrumental to the production and management of social risks. The book also shows how the concept of social risk can be used to improve policy making and implementation. Targeted at practitioners, researchers, policymakers, and students, this book will be of interest to those in the fields of public administration, public service management, and risk management more generally.
Technological innovation (4IR) in law teaching and learning: Enhancement or drawback during Covid-19? book emerged from a lecture series the Faculty of Law at UP hosted in the 2021 academic year. Aiming to test the state of teaching and learning during the pandemic, the lecture series asked whether ERT and learning (ERTL) compromised or enhanced the teaching and learning of law. Among others, various academics from UP Law as well as from the universities of KwaZulu-Natal, Johannesburg and Free State. as well as officials from the DHET, participated in the series. This collection comprises chapters written by some of the representatives who were involved in the lecture series. This book aims to set the tone for teaching and learning of law after the pandemic. It is our hope that the lessons learnt during the pandemic will be adopted in the day-to-day teaching pedagogy of law in the future. Despite the disruptions caused by the pandemic, a possibly unseen benefit can be identified. As this book argues, law teaching and learning using technological innovations have been positive for both academics and students. Thanks to technological innovation, the discipline of law is arguably in a far better position after the pandemic than before.
Through the rise of big data and the internet of things, terrorist organizations have been freed from geographic and logistical confines and now have more power than ever before to strike the average citizen directly at home. This, coupled with the inherently asymmetrical nature of cyberwarfare, which grants great advantage to the attacker, has created an unprecedented national security risk that both governments and their citizens are woefully ill-prepared to face. Examining cyber warfare and terrorism through a critical and academic perspective can lead to a better understanding of its foundations and implications. Cyber Warfare and Terrorism: Concepts, Methodologies, Tools, and Applications is an essential reference for the latest research on the utilization of online tools by terrorist organizations to communicate with and recruit potential extremists and examines effective countermeasures employed by law enforcement agencies to defend against such threats. Highlighting a range of topics such as cyber threats, digital intelligence, and counterterrorism, this multi-volume book is ideally designed for law enforcement, government officials, lawmakers, security analysts, IT specialists, software developers, intelligence and security practitioners, students, educators, and researchers.
The authors have spent their lives in South Africa, are writing this book from and within a very particular context of compounded oppression, marginalisation and otherness. In many ways, apartheid has both damaged and provided us with the emotions and language through which to speak from and about harmful speech. That apartheid managed to succeed in its depravity for as long as it did, begins to provide some hint to the often-underestimated power and debilitation of speech and language. This book, therefore, is not only an interpretation and analysis of what a philosophy of education might have to offer in relation to the debate on free speech. Rather, it is also an attempt to make meaning of lived experiences – its encounters, it conflicts and its harms – so that this debate is extended beyond conceptual deliberations and into a realm of human and humane dialogue for the sake of seeing and knowing one another. The authors are intent upon understanding the arguments—both for and against freedom of speech—for the purpose of what makes educational sense. In short, the book questions whether constraining any form of speech would create conditions for control and manipulation that affect pedagogical encounters adversely. If encounters were to remain justifiable, ways should be found to undermine a restriction on free speech rather than encouraging the advocacy of constrained free speech within pedagogical encounters. The authors raise questions about whether an argument for free speech can ensure more durable and justifiable pedagogical encounters in which the rights of teachers and students to exercise their rights to uncensored free speech should and would never be violated.
