Southern African Public Law

Bridging the Gaps Between Human Rights and Climate Governance at the International and Regional Judicial Spheres

2023-11-17T07:44:38+00:00

Climate litigation underscores the critical role of judicial systems in addressing the legal complexities that emanate from global climate governance. The lead-up to and the aftermath of the Paris Agreement saw the emergence of climate litigation with claims encompassing a human rights dominance. Climate litigation serves as a critical tool that not only exposes the deficiencies within the existing international climate change regime, but also sheds light on the pressing human rights issues arising from the widespread effects of climate change. This article examines the value and effectiveness of climate litigation in enhancing the connection between climate change impacts and the protection of human rights. This article emphasises the role of the international and regional judicial bodies in orchestrating the gaps and overlaps in the human rights and climate change regimes.

Recognition of Marriage by Repute: Its Implications on Customary Law and Gender Justice in Malawi

2023-10-26T06:47:04+00:00

Since 1995, the Constitution of Malawi has recognised marriage by repute or cohabitation as a form of marriage in the country. However, it was only in 2015 that the Marriage, Divorce and Family Relations Act formalised such a marriage by providing a criterion for courts by which the existence of the marriage can be determined. The authors argue that this Act reflects upon society by accepting this form of marriage even in traditional society. Through discourse analysis and doctrinal research methodology, the article traces how the initial concept of a valid marriage has changed to accommodate and recognise this form of marriage. Even before the statutory law had operationalised this form of marriage, traditional leaders, as a way of determining the validity of marriages, clothed these unions with some rights ordinarily attached to married people. Customary law is not static but changes over time even in a process of cross-fertilisation with statutory law, where each is culpable of being shaped and also shaping the other. The recognition of marriage by repute has changed the marriage terrain in Malawi where eighty per cent of marriages are contracted under customary law, providing gender justice for women who were initially disadvantaged when such unions were not regarded as valid marriages by not complying with formal marriage requirements in terms of custom. Such women lost all rights afforded to a wife and the necessary benefits that she would have had in a valid marriage.

Towards an Afrikan Approach in Resolving the Conundrum Between a Civil and Customary Marriage

2022-11-03T11:16:10+00:00

Since the dawn of colonialism, customary marriages have been considered inferior to civil marriages. The treatment of customary law as inferior, has racial connotations, as the colonists viewed Africans as barbaric. Since the Constitution of the Republic of South Africa, 1996 took effect, the Constitutional Court pledged a commitment to afford Afrikan jurisprudence an independent identity to prevent it from being viewed as inferior to the common law. Section 10 of the Recognition of Customary Marriages is problematic because it states that a customary marriage can be overridden by a civil marriage. The courts’ argument that customary law and common law enjoy equal status is not true when one considers how courts have relied on the common law in customary law disputes. South Africa needs a decolonised option because judicial pronouncements and legislation have reaffirmed the superior state of the common law, as introduced by the colonists. Developments in the wake of the death of king Zwelithini, who was in a polygynous marriage, have implications for the debate whether a customary marriage concluded after a civil ceremony is valid, or whether a civil marriage and a customary marriage could co-exist. A solution is needed for this conundrum, because declaring customary marriages invalid is not beneficial to women married under this system.

Setsopolwa (Northern Sotho)

Go tloga mola go bago le bokoloniale, manyalo a setšo a bonwe bjalo ka a maemo a fase go manyalo a semmušo. Go bona molao wa setšo bjalo ka wa maemo a fase, go na le seemo sa kgethologanyo ya semorafe, ka ge bao ba tlišitšego bokoloniale ba bone MaAfrika bjalo ka batho bao ba sego ba hlabologa. Go tloga mola Molaotheo wa Repabliki ya Afrika Borwa, wa 1996 o thomago go šoma, Kgorotsheko ya Molaotheo e ile ya tshephiša go fa tshepedišo ya semolao ya Seafrika boitšhupo bjo bo ikemego bja go e thibela go bonwa bjalo ka ya maemo a fase go molao wa setlwaedi. Karolo ya 10 ya Temogo ya Manyalo a Setšo e na le bothata ka gobane e bolela gore lenyalo la setšo le ka tšeelwa legato ke lenyalo la semmušo. Ntlha ye e tšweletšwago ke kgorotsheko ya gore molao wa setšo le molao wa setlwaedi di a lekana ga se nnete ge motho a lemoga ka fao dikgorotsheko di tshephilego kudu molao wa setlwaedi ka dithulanong tša molao wa setšo ka gona. Afrika Borwa e hloka kgetho ye e hlokago bokoloniale ka gobane diphetho tša semolao le melao e tiišeditše leswa maemo a godimo a molao wa setlwaedi, ka ge o tsebagaditšwe ke batho bao ba tlišitšego bokoloniale. Diphetogo tšeo di bilego gona ka morago ga lehu la kgoši Zwelithini, yo a bego a le ka lenyalong la basadi ba bantši, di na le diabe go ngangišano ya ge eba lenyalo la molao wa setlwaedi leo le phethilwego ka morago ga lenyalo la semmušo le molaong, goba ge eba lenyalo la semmušo le lenyalo la setšo a ka kgona go phethagatšwa ka nako e tee. Tharollo e a nyakega mo kgakanegong ye, ka gobane gore manyalo a setšo ga a molaong ga go hole basadi bao ba nyetšwego ka fase ga lenyalo le.

The Originality of Digital Evidence and the Retention of Seized Digital Devices by Law Enforcement Officers in South Africa

2023-12-04T09:31:30+00:00

Information and communication technology (ICT) devices, including mobile phones, laptops, computers and data storage mediums, such as memory sticks, are being seized daily by law enforcement agents. These devices are seized for different reasons in terms of the provisions of sections 21 to 23 of the Criminal Procedure Act 51 of 1977 and now, in terms of the provisions of sections 28 and 29 of the Cybercrimes Act 19 of 2020. The seizure and extended retention of such devices by law enforcement can have a devastating impact on businesses and individuals. In virtually all cases, the main objective of seizing an ICT device is to secure its data for purposes of investigation and the collection of evidence. This excludes, inter alia, cases where a device contains contraband and cannot be handed back to the suspect or in a case where circumstances justify forfeiture to the state. This article is limited to cases where the physical device has no evidential value. It is contended that the content of the evidential data and the requirement of originality on an ICT device is met by scientifically created forensic duplicates of the data, which negate law enforcement from unnecessary seizure and retaining the original device. The authors contend that ICT devices should only be seized in situations where a forensic duplicate of the evidential data cannot be created on the scene and, if seized, the evidential data should be forensically duplicated, and the original device returned within a pre-determined period. An extension of the pre-determined period should only be granted by a magistrate upon application. It is recommended that the subject be researched further, to arrive at a reasonable, pre-determined period, and that the Criminal Procedure Act 51 of 1977 and Cybercrimes Act 19 of 2020 be amended accordingly.

A Comparative Study on Human Trafficking as a Crime in South Africa

2023-07-19T06:33:28+00:00

With millions of people trapped in modern-day slavery, human trafficking is largely misunderstood, owing to limited data and research. Present-day human trafficking trends are linked to issues such as corruption, funding, public awareness, and poor anti-trafficking coordination. Over centuries, human trafficking has taken on a variety of forms ranging from enslavement in all its forms to organ removal. South Africa’s most significant achievement in combatting human trafficking is its own anti-trafficking legislation, namely the Prevention and Combatting of Trafficking in Persons Act of 2013. However, some provisions of this Act remain ineffective, thus impeding the fight against trafficking in the country. This article focuses on South Africa’s trafficking trends and anti-trafficking responses. It also highlights the hindrances obstructing the effective enforcement of its legislation by comparison to the first-world country Canada, to gain an understanding of effective anti-trafficking administration and execution to ultimately provide recommendations for South Africa to follow. For example, years before South Africa, Canada had already responded to international pressures regarding its anti-trafficking efforts. The country focused ample resources and funding on its anti-trafficking task team while South Africa followed a piecemeal approach in addressing human trafficking. This stems from a misunderstanding of the crime and policy frameworks, and mismanagement of funds. This article proposes that the South African government should strengthen its anti-trafficking measures by making funds easily accessible to victims and educating front-line responders to communicate effectively with victims.

Creating and Sustaining a ‘Tunnel Vision’ Argument for the Application of Customary Law—A Language Conundrum

2023-07-11T08:14:14+00:00

Legal practitioners and scholars have argued that customary law in the South African legal context has historically been underpinned by various issues which include, but are not limited to, epistemological misunderstanding, problems of ill-will in the application of this law and intentional underdevelopment. While there is contestation to a degree, the common ground among legal scholars is that the praxis of law in the country is disconnected from indigenous people’s customary beliefs, cultural practices and legal experiences. This has culminated in the training and practice of law in South Africa that lacks inclusion and or a reflection of indigenous people’s worldviews and understandings of law. Naturally, this means that it overlooks the importance of indigenous languages in the understanding and application of the law. Regrettably, the continued intentional or unintentional consumption of law founded predominately on a Euro-American worldview and cultural practices, renders South African law problematic as far as its conceptualisation and application of customary law is concerned. It is at this juncture that the present article argues that language as a cultural artefact is a critical tool in the formulation, teaching, training and praxis of law. For the South African context, indigenous languages, therefore, become a critical tool for this purpose as opposed to the prevailing use of the English language. To this end, this contribution debates African epistemological and indigenous language questions intended to demonstrate their relevance in the formulation, training and application of law in South Africa. Specifically, the article is intended to contribute to the decolonial discourse in the legal fraternity with emphasis on the importance of correct conceptualisation and application of the indigenous people’s customary beliefs, cultural practices and legal experiences.