South African governance legal framework for corporate disclosures and reporting: Part 2—Mandatory financial disclosure and reporting

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2

South African governance legal framework for corporate disclosures and reporting: Part 2—Mandatory financial disclosure and reporting

Author: Werner Schoeman

ISSN: 1996-2185
Affiliations: Lecturer, Mercantile and Labour Law Department, University of Limpopo
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 213 – 231
https://doi.org/10.47348/SAMLJ/v35/i2a5

Abstract

In this second part of this article, I focus on the efficacy of the framework for mandatory financial disclosure and reporting. In particular, I investigate the governance of auditors within the corporate jurisprudence. Independence of auditors remains contentious in the light of the funding model of the regulator, functioning of audit committees and the connection between directors and companies.

Case Notes: Is the foreign business establishment lagging behind new business models? Commissioner for the South African Revenue Service v Coronation Investment Management SA (Pty) Ltd [2023] ZASCA 10

by | Mar 10, 2024 | SAMLJ, SAMLJ V35 I2, Uncategorized

Case Notes: Is the foreign business establishment lagging behind new business models? Commissioner for the South African Revenue Service v Coronation Investment Management SA (Pty) Ltd [2023] ZASCA 10

Author: Khodani Sengwane

ISSN: 1996-2185
Affiliations: Lecturer, University of Pretoria
Source: South African Mercantile Law Journal, Volume 35 Issue 2, 2023, p. 232 – 240
https://doi.org/10.47348/SAMLJ/v35/i2a6

Abstract

None

The Historical Application of Command Responsibility as Basis for Prosecuting Sexual Violence Crimes Under International Criminal Law: The Post-World War II Criminal Tribunals to Rome

by | Mar 4, 2024 | FUND, FUND V29I2

The Historical Application of Command Responsibility as Basis for Prosecuting Sexual Violence Crimes Under International Criminal Law: The Post-World War II Criminal Tribunals to Rome

Author Brenda Akia

ISSN: 2411-7870
Affiliations: LLB (Makere) LLM (Humboldt/UWC) LLD (Pret). Member of the UN CEDAW Committee
Source: Fundamina, Volume 29 Issue 2, p. 1-32
https://doi.org/10.47348/FUND/v29/i2a1

Abstract

The principle of command responsibility places a legal obligation on military commanders or civilian superiors to take reasonable and necessary steps to prevent and suppress commission of crimes, including sexual violence crimes by persons under their command, or to report to competent authorities if the crimes are committed. This contribution provides a historical analysis of the evolution of the codification and adjudication of command responsibility and its application to prosecute sexual violence crimes under international criminal law. Examining this historical evolution aims to provide legal practitioners with a clear understanding of how the doctrine of command responsibility found its way into contemporary international criminal law treaties, such as the Rome Statute of the International Criminal Court. This will assist legal practitioners to successfully apply command responsibility to prosecute sexual violence crimes and to better understand the interplay between international criminal law and international humanitarian law.

“Under the Whip” or Marital Violence, Cruelty and Drunkenness: Defining the Boundaries of Judicially Intolerable Marital Behaviour in the Cape Supreme Court, 1890–1900

by | Mar 4, 2024 | FUND, FUND V29I2

“Under the Whip” or Marital Violence, Cruelty and Drunkenness: Defining the Boundaries of Judicially Intolerable Marital Behaviour in the Cape Supreme Court, 1890–1900

Author Amanda Barratt

ISSN: 2411-7870
Affiliations: BA(Hons) (UCT) LLB LLM (Unisa) PhD (UCT). Associate Professor, Private Law, University of Cape Town
Source: Fundamina, Volume 29 Issue 2, p. 33-84
https://doi.org/10.47348/FUND/v29/i2a2

Abstract

This contribution explores marital violence in the Cape during the last decade of the nineteenth century. It is based on a comprehensive review of 587 matrimonial cases heard in the Cape Supreme Court over a ten-year period from January 1891 to December 1900. The study shows that marital violence had occurred in almost one quarter of the matrimonial suits finalised during that decade. The contribution explores the judicial response to violence within marriage. The optimal protection available to an abused wife was a judicial separation order. Such an order was available where continued cohabitation had become dangerous or “intolerable”. The research explores the kinds of marital behaviour deemed to be sufficiently intolerable to justify a separation order. While the Cape Supreme Court did not always provide abused wives with the protection of a separation order, the court nevertheless expressed firm disapproval of physical abuse. It viewed continual drunkenness as intolerable behaviour, and also regarded both emotional and economic abuse as reprehensible. The contribution also takes a look at the community’s response to interspousal violence and at the prevailing societal views of appropriate behaviour for husbands and wives. The study further investigates the development of the companionate marriage as a partnership of equals. It shows that, by the late nineteenth century, wives were demanding more control within the marital consortium and further that contemporary societal expectations determined that marriages should be romantic relationships based on mutual affection. Law plays an important part in both reflecting and shaping social attitudes. The court rulings helped to shape the law by establishing the legal boundaries of so-called acceptable marital behaviour. These cases reveal the law’s role in shaping acceptable behaviour for husbands and wives respectively, reflecting and reinforcing gendered marital roles.

People for Sale: Tracing the Historical Roots of Slavery and Human Trafficking in Early Colonial South Africa

by | Mar 4, 2024 | FUND, FUND V29I2

People for Sale: Tracing the Historical Roots of Slavery and Human Trafficking in Early Colonial South Africa

Author Nina Mollema

ISSN: 2411-7870
Affiliations: D Litt et Phil LLB LLM LLD (Unisa). Associate Professor, Department of Criminal and Procedural Law, University of South Africa
Source: Fundamina, Volume 29 Issue 2, p. 85-111
https://doi.org/10.47348/FUND/v29/i2a3

Abstract

Some researchers assert that trafficking in persons is a contemporary form of slavery that has existed for at least a century between Africa and Europe in the form of the trans-Atlantic slave trade. Other scholars, who only regard human trafficking as trafficking done for the purpose of sexual exploitation, maintain that the origins of modern trafficking dates to the end of the nineteenth century. However, the history of trafficking in South Africa goes back even further. This contribution outlines the history of human enslavement in South Africa from its conceptualisation as slavery through to its evolution as human trafficking. In this investigation, the similarities and differences between slavery and human trafficking are highlighted. By analysing the annals of human trafficking, it is shown that the original form of human exploitation – slavery – has a long-standing tradition in South Africa. It is contended that learning from past human-bondage injustices may contribute positively to a more comprehensive understanding not only of contemporary slavery, but also of the challenges affecting the present success of anti-trafficking efforts.

Book Review: Tulrike Babusiaux, Christian Baldus, Wolfgang Ernst, Franz-Stefan Meissel, Johannes Platschek & Thomas Rüfner (Eds) Handbuch Des Römischen Privatrechts

by | Mar 4, 2024 | FUND, FUND V29I2

Book Review: Tulrike Babusiaux, Christian Baldus, Wolfgang Ernst, Franz-Stefan Meissel, Johannes Platschek & Thomas Rüfner (Eds) Handbuch Des Römischen Privatrechts

Author Philip Thomas

ISSN: 2411-7870
Affiliations: Emeritus Professor, University of Pretoria
Source: Fundamina, Volume 29 Issue 2, p. 112-121
https://doi.org/10.47348/FUND/v29/i2a4

Abstract

None

Who believes black women? Applying the right to health framework to undo epistemic injustice

by | Mar 4, 2024 | SLR, SLR V34 I2

Who believes black women? Applying the right to health framework to undo epistemic injustice

Author: Tlaleng Mofokeng

ISSN: 1996-2193
Affiliations: United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 249 – 260
https://doi.org/10.47348/SLR/2023/i2a1

Abstract

Epistemic injustice has a significant impact on black women’s experiences of healthcare. The failure of medical professionals to consider the experience of black women impairs the realisation of their right to health. Moreover, it embeds the disadvantages that these women face, undermining the realisation of substantive equality. This lecture considers how the medical community’s failure to believe and listen to black women constitutes an example of epistemic injustice. First, it discusses the prevalence of so-called “sex testing” in sports and how it is often used to target black female athletes as an example of epistemic injustice. In particular, it focuses on the impact of sex testing on the career of Caster Semenya. Secondly, it addresses how the forced sterilisation of black women in South Africa is another example of epistemic injustice in healthcare, negatively impacting their rights. Finally, it considers the criminalisation of sex work in South Africa as a third example of epistemic injustice that has substantially affected the rights of mostly black women.

Medico-legal and bioethical implications of uterine transplants for trans women in South Africa

by | Mar 4, 2024 | SLR, SLR V34 I2

Medico-legal and bioethical implications of uterine transplants for trans women in South Africa

Author: Brigitte Clark

ISSN: 1996-2193
Affiliations: BA LLB (Rhodes) LLM (Cantab) PhD (Rhodes), Associate Professor, School of Law, University of KwaZulu-Natal, Honorary Visiting Researcher, Oxford Brookes University, Oxford
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 261 – 284
https://doi.org/10.47348/SLR/2023/i2a2

Abstract

Millions of women worldwide are affected by congenital or acquired uterine infertility, often requiring hysterectomy, and are thus unable to gestate their own children. This article provides an initial framework for assessing the feasibility of uterine transplantation against the backdrop of the best interests of the child and legal, ethical and societal notions of the family, focusing on the medical, ethical and legal position of women affected by uterine infertility, and particularly on the constitutional rights of trans women in this regard. The transplantation of organs was initially developed as a life-saving treatment and a last resort. By contrast, uterine transplantation falls into the non-life sustaining category, which raises complex ethical issues. Following a successful clinical trial investigating uterine transplantation in Sweden, uterine transplantation appears to be a viable therapeutic option for women with uterine infertility, known as absolute uterine factor infertility. For trans women, infertility has been a consequence of the realignment of a trans woman’s body by surgery with their gender identity. Medically, ethically and legally, the consideration of performing uterine transplantation in trans women would be primarily motivated by considerations of equality. Legally, in terms of the Constitution, transgender people are afforded explicit protection from both direct and indirect forms of discrimination. Subsequently, if uterine transplantation became an established treatment option for women with absolute uterine factor infertility, it might be constitutionally discriminatory to refuse to perform uterine transplantation on trans women solely because of their gender identity. In the context of the rights to equality, dignity and reproductive freedom, the article poses the question whether such rights could justifiably be limited in South African law in terms of section 36 of the Constitution, with particular reference to the right to reproductive freedom. After considering whether such rights could legitimately be limited, the article concludes that, in relation to advances in medical law and reproduction, South African legislation should scrutinise its hetero-normative concept of the family in this regard.

Evaluating remedial empowerment as a missing link in administrative justice

by | Mar 4, 2024 | SLR, SLR V34 I2

Evaluating remedial empowerment as a missing link in administrative justice

Authors: Ernst Heydenrych and Geo Quinot

ISSN: 1996-2193
Affiliations: LLB (cum laude) LLM (cum laude) LLD (Stell), Junior Lecturer, Department of Mercantile Law, University of Stellenbosch; BA (Law) LLB (Stell) LLM (Virginia) MA (UFS) MPA (Birmingham) LLD (Stell), Professor, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 285 – 309
https://doi.org/10.47348/SLR/2023/i2a3

Abstract

The Constitution of the Republic of South Africa, 1996 frames the project of addressing South Africa’s past and current challenges as one of justice, in what has generally become known as transformative constitutionalism. However, South Africa’s justice system (the formal judicial mechanisms to extract justice) remains largely inaccessible to the poor due to its high costs, prolonged time-periods, and technical nature. Furthermore, South Africa does not currently have a uniform system of administrative, internal controls, and it also does not currently recognise an enforceable duty against the state to implement such a system.
Within this context, the central argument of this contribution is that South Africa should, alongside section 7(2) of the Promotion of Administrative Justice Act 3 of 2000, recognise a duty to create internal remedies and establish a comprehensive system of administrative, internal remedies that would allow the public administration to correct or review its own decisions. The development of such a system would enable the public administration to deal with its decisions and actions on a first-hand basis and, in principle, broaden access to administrative justice for the poor and marginalised. It will also keep the promise of constitutional transformation as a matter of justice alive. We aim to set out the rationale for the creation and implementation of a uniform system of internal controls in this contribution.

Transformative constitutionalism and the framework of the common law of personality

by | Mar 4, 2024 | SLR, SLR V34 I2

Transformative constitutionalism and the framework of the common law of personality

Author: CJ Visser

ISSN: 1996-2193
Affiliations: LLB (UJ) LLM PhD (Wits), Senior Lecturer, School of Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 34 Issue 2, 2023, p. 310 – 332
https://doi.org/10.47348/SLR/2023/i2a4

Abstract

This article interrogates the constitutionalisation of the framework of the common law of personality – its substance and method – against the transformative constitutionalism paradigm. The transformative constitutionalism paradigm requires greater reflexivity as to the balancing of individualistic and collectivist values in common law frameworks. Such a constitutionalisation process must be influenced by legal culture and ideology as an overarching ideological concern. The Constitutional Court in Le Roux v Dey 2011 3 SA 274 ostensibly attempted to align the framework of the common law of personality with the Constitution of the Republic, 1996 (the “Constitution”). However, the court failed to articulate the human personality as a composite legal interest consisting of various personality rights, underscored by human dignity, due to a superseding preoccupation with subjective feelings of self-worth. This reduced the composite nature of the human personality and the multifaceted nature of human dignity. The same preoccupation also prevented the separate and distinct application of the requirements of the actio iniuriarum to articulate the human personality as a composite legal interest. This article refers to the court’s judicial line of reasoning as “the iniuria approach”. This approach gives rise to an inadequate alignment between the common law and the Constitution, resulting in a substantive mismatch. Such a substantive mismatch is a “defective conversion”, of which the underlying cause is an underpinning ideology of pre-constitutional notions of (classical) liberalism) concealed through a conservative legal culture with attendant formalistic modes of legal reasoning. This causes an imbalance between individualistic and collectivist values permeating the common law’s framework in contradiction to the transformative constitutionalism paradigm. This imbalance frustrates the development of the framework of the common law of personality in line with constitutional values and necessitates the rejection of the iniuria approach in favour of a more transformative approach.