ISSN: 1996-2185
Affiliations: Attorney at law in Stuttgart (Germany)
Source: South African Mercantile Law Journal, Volume 36 Issue 1, 2024, p. 125 – 134
https://doi.org/10.47348/SAMLJ/v36/i1a6
None
ISSN: 2521-5442
Affiliations: LLB, LLM, LLD; Honorary research fellow, School of Law, University of KwaZulu-Natal, and Researcher, South African International Maritime Institute
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 1 – 21
https://doi.org/10.47348/JOGA/2022/a1
The 2007 Work in Fishing Convention(C188) aims to ensure decent work conditions for fishers by establishing minimum work standards on board a fishing vessel. Despite the comprehensive nature of the C188, forced labour remains a pervasive challenge in the fisheries sector, exacerbated by the recruitment of vulnerable workers through deceptive practices. This article determines the extent to which South Africa’s current legal and regulatory measures comply with the C188 provisions relating to the recruitment and placement of fishers. The article concludes that there is a lacuna in South Africa’s legal framework in its obligation to regulate the recruitment and placement agencies of fishers, leaving them vulnerable to exploitation by unscrupulous recruitment agencies. The article suggests two possible solutions to effectively implement the provisions of the C188 relating to the recruitment and placement of fishers. One option is to amend the existing Seafarer Recruitment and Placement Regulations of 2017 to include fishers. Alternatively, new Merchant Shipping (Fisher Recruitment and Placement) Regulations could be drafted. These new regulations would align with the existing Seafarer Recruitment and Placement Regulations and could be promulgated under the Merchant Shipping Act of 1951 or its successor, thereby giving effect to the convention.
ISSN: 2521-5442
Affiliations: Senior Lecturer, University of Cape Town
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 22 – 44
https://doi.org/10.47348/JOGA/2022/a2
South Africa’s national environmental management instruments, including the Integrated Coastal Management Act, 2008 (‘the NEM: ICMA’), provide statutory mechanisms for achieving cooperative governance in implementing environmental norms. Indeed, the NEM: ICMA provides for establishing integrated coastal management plans within the coastal zone, including South Africa’s coastal waters. In terms thereof, its provisions will prevail in the event of any conflict relating to coastal management. Moreover, the NEM: ICMA only requires that its provisions ‘be read, interpreted and applied in conjunction with the National Environmental Management Act, 1998 [NEMA]’. However, the recently adopted Marine Spatial Planning Act 2018 (MSPA) contains provisions that purport to override the provisions of any other instrument that conflicts with its requirements regarding plans that impact the marine environment. Certainly, it provides that ‘[a]ny right, permit, permission, licence or any other authorisation issued in terms of any other law must be consistent with the approved marine area plans’. This article explores the regulatory overlaps between the NEM: ICMA and the MSPA. It has identified potential areas of conflict with regard to the application of the NEM: ICMA, requirements for the approval of coastal management programmes and the contents thereof, coastal authorisations, coastal use permits, and coastal discharge permits. It confirms that the burden of regulatory consistency with marine spatial planning instruments and approved marine area plans is on other environmental instruments. It concludes with recommendations to prevent regulatory conflicts between the NEM: ICMA and the MSPA.
ISSN: 2521-5442
Affiliations: Research Fellow, Centre for International Law (CIL), National University of Singapore
Source: Amalwandle Ethu: Journal of Ocean Law and Governance in Africa, 2022, p. 45 – 55
https://doi.org/10.47348/JOGA/2022/a3
None
ISSN: 1996-2118
Affiliations: B Juris LLB LLM (Namibia); Legal Practitioner of High and Supreme Court of Namibia, Chief Legal Officer: High Court of Namibia; BJuris LLB (Namibia) LLM LLD (Pretoria); Senior Lecturer, Department of Public Law, School of Law, University of Namibia
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 171 – 190
https://doi.org/10.47348/SACJ/v37/i2a1
With the attainment of independence in 1990, Namibia’s criminal justice system underwent several reforms, notably the abolition of the death penalty and corporal punishment. Sentencing thus took a different direction with fines, direct imprisonment and/or suspended sentences in part or whole, periodical imprisonment, declaration as a habitual criminal and committal to an institution, as the main sentencing formulae. Accordingly, the length of imprisonment for offenders may be determined as a result of legislative directives or as an exercise of judicial discretion. In its simplistic form, and as this article shows, the old case of S v Zinn 1969 (2) SA 537 (A), which the Namibian courts have adopted, proposes that the court has to look at the offender, the crime and the interest of society when proposing a balanced sentence for an offender. However, the influence of human rights, which was ushered in by a new constitutional framework, now also strongly affects the courts’ sentencing approach anchored in the Zinn triad. To this end, in S v Gaingob 2018 (1) NR 211 (SC) and Gariseb v S (P8/2015) [2024] NASC 8 (28 March 2024), the Namibian Supreme Court supplemented the principles of sentencing by introducing new reforms. Using a qualitative approach based on an anecdote of prevailing case law, this article found that despite concerted efforts towards a unified holistic sentencing approach by the courts, there exists several implications brought about primarily by the Gaingob decision and that there may be a need to address these gaps. Consequently, this article proposes several reforms that can possibly be considered in Namibia’s criminal justice system to rectify and clarify the challenges Gaingob and Gariseb pose for our courts and legal practice on a day-to-day basis.