From “Belligerent” to “Organised Armed Group”: Understanding the Legal Justification of the Metamorphosis of the Designation of Non-State Groups in a Common Article 3 Conflict

by | Sep 6, 2025 | FUND, FUND V31I1

From “Belligerent” to “Organised Armed Group”: Understanding the Legal Justification of the Metamorphosis of the Designation of Non-State Groups in a Common Article 3 Conflict

Author Ayodele Ojedokun

ISSN: 2411-7870
Affiliations: LLB (Obafemi Awolowo University) LLM LLD (University of Pretoria). Postdoctoral Research Fellow at the South African Research Chair in International Law, University of Johannesburg
Source: Fundamina, Volume 31 Issue 1, p. 103-122
https://doi.org/10.47348/FUND/v31/i1a4

Abstract

The Geneva Conventions were negotiated at the diplomatic conference held in Geneva in 1949, making 2024 its seventy-fifth anniversary. The intentions of states at that time concerning the identification of a non-state party to an armed conflict not of an international character was for a non-state group to be identified as belligerent; however, in contemporary conflict situations, a non-state party is identified as an organised armed group. This contribution examines the metamorphosis of these terminologies in relation to the identification of a non-state party to a conflict by exploring the travaux préparatoires of the Geneva Conventions. Furthermore, to justify the shift in the interpretation of a non-state party as belligerent to organised armed groups, this study analyses the legal basis of this change from an historical perspective by examining whether an evolving intention was envisaged by the plenipotentiaries during the negotiation of the Conventions. And, finally, this contribution compares the original intention of the drafters of the Conventions with the contemporary interpretation in the application of the Common Article 3 in relation to the identification of non-state groups.

The Relationship Between Legal-Political Context and Natural-Resource Wealth Distribution in South Africa

by | Sep 6, 2025 | FUND, FUND V31I1

The Relationship Between Legal-Political Context and Natural-Resource Wealth Distribution in South Africa

Author Anthea-lee September-Van Huffel

ISSN: 2411-7870
Affiliations: LLB LLM (UWC) LLD (UFS). Department of Private Law, University of Cape Town
Source: Fundamina, Volume 31 Issue 1, p. 123-147
https://doi.org/10.47348/FUND/v31/i1a5

Abstract

This contribution discusses the dynamic relationship between legalpolitical context and the distribution of economic wealth derived from natural resources. By reflecting on South Africa’s critical legal history in natural-wealth distribution, it illustrates that law, seemingly neutral and devoid of politics, is in fact political and capable of unjust outcomes. The aim of this contribution is to highlight the effects of the colonial and apartheid legacies of inequitable distribution of natural-resource wealth and its ongoing ideological influence on the post-apartheid legal-political context and its distributive policies. The historical use of law as a political tool to control the distribution of natural-resource wealth in specifically minerals and water is discussed to illustrate this dynamic relationship. Furthermore, the legal powers attributed to the role of the state in legal-political context produce economic inequalities or equalities depending on the prevailing understanding of the state’s role and its priorities. During the colonial-apartheid eras, law was used to bolster political and capitalist interests. It is argued that South Africa’s untransformed legal-political context remains susceptible to undemocratic outcomes in the form of neo-liberal capitalism. From a constitutional distributive justice perspective, this study problematises the legal-political context and critically discusses the state’s failure to give sufficient attention to its transformative and distributive role as evidenced by the high rate of poverty and unemployment in South Africa. For example, public trusteeship was legislated for the state to ensure beneficial management of South Africa’s water for all its citizens. Similarly, state custodianship of mineral resources was legislated to promote “justifiable social and economic development”. Legal mechanisms like these empower the state to achieve distributive justice with regard to South Africa’s natural-resource wealth. However, only through cultivating a transformative constitutional legal-political context with an accountable state willing to fully harness its distributive role, will equality start to materialise in the livelihoods of citizens.

The Genesis of the Generic Idea of Human Dignity in South African Law

by | Sep 6, 2025 | FUND, FUND V31I1

The Genesis of the Generic Idea of Human Dignity in South African Law

Author Rinie Steinmann

ISSN: 2411-7870
Affiliations: B Iuris LLB LLD (North-West University, Potchefstroom). Attorney at Steinmann Attorneys, Meyerton
Source: Fundamina, Volume 31 Issue 1, p. 148-179
https://doi.org/10.47348/FUND/v31/i1a6

Abstract

The modern idea of human dignity, legalised in 1948, has a rich and profound legal history, also in the South African context. Before 1994, when human dignity was constitutionalised in South African law, the common-law concept of dignitas was intrinsically connected to status and hierarchy in society and it endorsed judicialised inequality and discrimination against certain classes. Yet, as far back as 1934, Gardiner AJA, in a minority judgment in Minister of Post and Telegraphs v Rasool, argued along the lines of critical morality to object to the majority’s ruling that the common-law concept that everyone is equal in the eyes of the law can be abrogated by applying the separate-butequal principle, if such application was not categorically outlawed by legislation. This, according to Gardiner, resulted in the impairment of the dignitas of blacks by relegating them to a lower order in society. But Gardiner AJA’s novel application of the dignitas principle functioned neither as the pre-war paradigm of human dignity as initially formulated by the Stoics, nor as the common-law claim of dignitas. It rather comports with the current paradigm that everyone is equal and inherent human dignity needs to be respected and protected. Rasool was probably the first minority judgment in a Western legal system in which dignitas-ashuman-dignity was applied on a horizontal level, introducing a new line of legal thought that allows all humans to enjoy equal legal capacity to enforce rights outside the moral (vertical) realm. In this contribution, Gardiner AJA’s usage of dignitas-as-human-dignity will be contrasted against the pre-and post-war paradigms of human dignity by using the common-law concept of dignitas as a placeholder to illustrate the differences between the two paradigms and to provide a theoretical justification for the post-war paradigm.

A critical analysis of third-party personal liability for tax debts in ss 183 and 184 of the Tax Administration Act 28 of 2011

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

A critical analysis of third-party personal liability for tax debts in ss 183 and 184 of the Tax Administration Act 28 of 2011

Authors: Jean-Roux Van Huyssteen & Rudie Nel

ISSN: 1996-2185
Affiliations: Director, TRM Tax Attorneys, Cape Town; Associate professor, School of Accountancy, Stellenbosch University
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 1 – 20
https://doi.org/10.47348/SAMLJ/v37/i1a1

 Abstract

Third-party personal liability provisions are contained in ss 183 and 184 of the Tax Administration Act 28 of 2011. Based on jurisdictional requirements, specific areas of uncertainty were identified and motivated the purpose of the article to investigate such uncertainties to offer guidance for taxpayers, policymakers, and tax authorities. The objectives of the article were to investigate the meaning of certain terms (‘tax debt’ and when such a tax debt would arise, ‘dissipation of assets’, ‘knowingly’, and ‘same rights against the powers of recovery’) and to investigate the alignment of the third-party personal liability provisions with the fundamental principles of equity and certainty as advocated by Adam Smith. Based on the findings, the article proposes refinements to ss 183 and 184, including guidance on the necessity of assessments, the clarification of procedural steps, and the establishment of comprehensive frameworks for imposing personal liability. These recommendations aim to enhance clarity, efficacy, and fairness, contributing valuable insights to ongoing discussions on taxpayer rights and the equitable functioning of the tax system.

Examining the role of the African Continental Free Trade Agreement in advancing labour standards

by | Aug 31, 2025 | SAMLJ, SAMLJ V37 I1

Examining the role of the African Continental Free Trade Agreement in advancing labour standards

Author: Shelton T Mota Makore

ISSN: 1996-2185
Affiliations: Senior Law Lecturer, Department of Mercantile Law, University of the Free State
Source: South African Mercantile Law Journal, Volume 37 Issue 1, 2025, p. 21 – 47
https://doi.org/10.47348/SAMLJ/v37/i1a2

 Abstract

The extension of labour standards in contemporary free trade agreements has become an indispensable instrument that can potentially contribute towards the protection of labour standards, the promotion of safe and secure working environments, and the ending of modern slavery, child labour, and human trafficking. Notwithstanding their importance, labour standards are conspicuously absent from the explicit objectives and scope of the African Continental Free Trade Area Agreement (AfCFTA). This is despite that the Protocol on Investment to the AfCFTA includes an abstract state-centric obligation concerning labour standards and prohibits weakening such standards to attract investment. These obligations require investors to comply with certain labour standards and exempt regulatory action to protect labour rights from the ambit of provisions regarding indirect expropriation. This article argues that to further consolidate labour standards and protect workers’ rights in the AfCFTA regime, there is a need to adopt accompanying specific labour standards-related provisions, including a specialised trade-labour protocol and other measures, which should be implemented alongside the continental free trade agreement.