Identification parades in South Africa — Time for a change?

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Identification parades in South Africa — Time for a change?

Authors: Colin G Tredoux, Ryan J Fitzgerald, Aldred Allan & Alicia Nortje

ISSN: 1996-2177
Affiliations: Professor, Department of Psychology, University of Cape Town; Assistant Professor, Department of Psychology, Simon Fraser University; Professor, Department of Psychology, Edith Cowan University; Post-doctoral Researcher, Department of Psychology, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 84-111
https://doi.org/10.47348/SALJ/v141/i1a5

Abstract

Identification parades are essential when obtaining evidence of identity from eyewitnesses. Eyewitnesses are shown a line of people containing the suspect(s) and innocent fillers, and witnesses are asked to point out the perpetrator(s) of the crime, noting that the perpetrator(s) might not be present. Corporeal (‘live’) parades are required in South Africa unless there is a good reason not to use them, in which case the police may use photograph parades. We review the rules for conducting parades in South Africa and compare these to those in several other countries, many of which no longer use corporeal parades. We consider evidence from empirical studies that have tested the ‘live superiority’ hypothesis and conclude that there is no clear evidence in its favour, notwithstanding that there are benefits to augmenting static views of faces with additional cues to identity. We then consider the logistical and financial cost of conducting live parades, which we find to be considerable. We conclude that it may well be time to reconsider the use of live identification parades in South Africa but caution that this should coincide with a review of the law regulating the use of alternative methods to ensure that accused persons receive fair trials.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Authors: Amy Gooden & Donrich Thaldar

ISSN: 1996-2177
Affiliations: Doctoral Fellow, School of Law, University of KwaZulu-Natal; Professor, School of Law, University of KwaZulu-Natal; Visiting Scholar, Petrie-Flom Center for Health Policy, Biotechnology, and Bioethics, Harvard Law School
Source: South African Law Journal, Volume 141 Issue 1, p. 112-142
https://doi.org/10.47348/SALJ/v141/i1a6

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Gooden, A & Thaldar, D
The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act
South African Law Journal, Volume 141 Issue 1, p. 112-142 https://doi.org/10.47348/SALJ/v141/i1a6

Abstract

This article examines the regulation of health-related direct-to-consumer genetic tests (‘HDGTs’) in South Africa by the Medicines and Related Substances Act 101 of 1965 and its related regulations, namely the Regulations Relating to Medical Devices and In Vitro Diagnostic Medical Devices and the draft Regulations Relating to Medical Devices, as well as the South African Health Products Regulatory Authority guidelines. Such regulation includes the classification, licensing, registration, marketing, labelling and importing of HDGTs. At a basic classification level, the manufacturer’s intention determines whether HDGTs are medical devices and/or in vitro diagnostic devices (‘IVDs’). Those HDGTs that are medical devices are also likely to be IVDs and are likely to be classified as Class B IVD medical devices, meaning that they pose low to medium risk. This is because the intended use of an HDGT is generally not as a diagnostic tool but as an informational tool, where the results are not definitive and additional testing is required. Accordingly, a licence is required to manufacture, import, export, sell or distribute HDGTs in South Africa. The classification of HDGTs also impacts the rules relating to labelling, advertising and importation.

Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Staring into voidness — Courts grapple with arbitration clauses in tainted contracts

Author: Saleem Seedat

ISSN: 1996-2177
Affiliations: Extraordinary Research Fellow, Faculty of Law, North-West University
Source: South African Law Journal, Volume 141 Issue 1, p. 143-168
https://doi.org/10.47348/SALJ/v141/i1a7

Abstract

Arbitration has a noble lineage that stretches back into time. It has evolved from a simple attempt to resolve disputes in the presence of a local authority to a more technical presentation before an independent arbiter. In South Africa, arbitrations have statutory recognition. This article focuses on an arbitration clause that is embedded in a substantive agreement where the agreement was induced by fraudulent misrepresentation by a party to the agreement. The general principles of the law of contract would dictate that fraud makes the contract voidable at the instance of the innocent party. But our courts have equivocated in deciding whether the tainted contract also besmirches the arbitration clause. While earlier decisions confirmed the autonomy of the arbitration clause, two judgments of the Supreme Court of Appeal (‘SCA’) in particular held that the arbitration clause foundered with the main agreement. The article argues that the SCA’s findings were misconceived and suggests that the SCA’s reluctance to allow arbitrators to decide on the validity of an arbitration clause in a contract instigated by fraud is incorrect. It is argued that consonant with international practice, an arbitration clause should be considered a clause separate from the main agreement that will not be affected by the invalidity of the main agreement. A subsequent SCA decision recognised the primacy of an arbitration clause incorporated into an agreement. The article also proffers the possibility of reading into a contract a tacit term that all disputes arising from the main agreement will be arbitrated.

Footing the (wage) bill: Reasoning, remedies and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

Footing the (wage) bill: Reasoning, remedies and National Education, Health and Allied Workers Union v Minister of Public Service and Administration (CC)

Authors: Justin Winchester & Catherine Willis-Smith

ISSN: 1996-2177
Affiliations: Bachelor of Civil Law candidate, Faculty of Law, University of Oxford; Teaching Assistant, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 169-200
https://doi.org/10.47348/SALJ/v141/i1a8

Abstract

In NEHAWU & others v Minister of Public Service and Administration & others 2022 (6) BCLR 673 (CC), the Constitutional Court declared invalid and unenforceable a clause regulating the third payment period in a collective agreement regulating periodic wage increases for public service employees. We do not take issue with the court’s findings concerning the validity of the impugned collective agreement. However, we question the reasoning provided for the ‘just and equitable’ remedy ordered. We find the court’s reasoning insufficient in so far as it overlooked applicable principles of corrective justice, the significance of the state being unjustifiably enriched by labour peace by curtailing public servants’ right to strike, and the consequences of its decision on the effectiveness of the delay-bar in preventing ill-motivated state self-review. We propose the bifurcated approach that the court adopted in the AllPay saga as a tool to adjudicate polycentric cases such as the impugned case, as it enhances the judiciary’s proper place in the separation of powers and maximises remedial possibilities for innocent third parties to state contracts. We conclude with what has happened on the ground since this decision was reached.

Ogochukwu Monye Digital Financial Inclusion and Regulation (2023); Oyeniyi Abe Implementing Business and Human Rights Norms in Africa — Law and Policy Interventions (2022); Victor T Amadi Trade, Migration and Law — Free Movement of Persons in the Southern African Development Community (2024)

by | Jan 28, 2024 | SALJ, SALJ V141 I1 2024

BOOK REVIEW

Ogochukwu Monye Digital Financial Inclusion and Regulation (2023); Oyeniyi Abe Implementing Business and Human Rights Norms in Africa — Law and Policy Interventions (2022); Victor T Amadi Trade, Migration and Law — Free Movement of Persons in the Southern African Development Community (2024)

Authors: Raisa Nyirongo, Yakubu Nagu & Ada Ordor

ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 141 Issue 1, p. 205-211
https://doi.org/10.47348/SALJ/v141/i1a10

Abstract

None

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Lack of small business participation (small fishing companies SIC Code 13100) in the Transport Education Training Authority-Supported Schemes

by | Jan 17, 2024 | SAJMET, SAJMET V2

Lack of small business participation (small fishing companies SIC Code 13100) in the Transport Education Training Authority-Supported Schemes

Author: Malcolm Alexander

ISSN: 2790-783X
Affiliations: ETD Practitioner (Maritime), Transport Education Training Authority
Source: South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 1-24
https://doi.org/10.47348/SAJMET/2023/i1a1

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Alexander, M
Lack of small business participation (small fishing companies SIC Code 13100) in the Transport Education Training Authority-Supported Schemes
South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 1-24 https://doi.org/10.47348/SAJMET/2023/i1a1

Abstract

The study focusses on the transport sector, where company participation level is measured at approximately 20% of levy paying enterprises, and this level is mostly based on relatively high levels of participation from large and medium-sized companies. The study explores the relationship between Sector Education and Training Authorities (SETAs) and the companies within the sectors they are mandated to serve by researching the Transport Education Training Authority (TETA) maritime subsector. The research focus is on small companies and the focus is specifically on the low rate of participation of smaller entities in the skills development landscape. The consequences of the lack of participation are investigated and the study concludes that the SETA’s ability to effectively research its sector skills, as well as the SETAs ability to provide effective skills planning in support of the national agenda, are both negatively affected by current levels of poor participation. The research was conducted on small fishing companies registered with TETA, in order to determine the reasons for low participation in the government’s mandatory grant scheme. The research is survey-based across participating and non-participating small companies. In addition, it is proposed that the elements contained herein are transferable to other subsectors of the transport economy (e.g. air, road and rail), and to the multitude of other SETAs that have small companies registered with them. Succinctly, there is no financial incentive to a small company to participate, the SETAs should consider incentives schemes to increase participation that is project-based and allows for subsidised training. The value of an improved Sector Skills Plan (SSP) that matches the skills needs of the sector increases the likelihood of projects having a meaningful impact on the sector and reduces fruitless and wasteful expenditure in the sector. The small business environment has huge potential to assist in skills development, a skilled workforce, improved productivity and reducing unemployment. The findings and solutions are important tools for taking the maritime development agenda forward.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Modern shipping needs to be cybersecure: A South African perspective

by | Jan 17, 2024 | SAJMET, SAJMET V2

Modern shipping needs to be cybersecure: A South African perspective

Authors: Rossouw von Solms and Suné von Solms

ISSN: 2790-783X
Affiliations: Emeritus Professor, Centre for Research in Information and Cyber Security (CRICS), School of Information Technology, Nelson Mandela University; South African International Maritime Institute; Head of Department, School of Electrical and Electronic Engineering Science, University of Johannesburg; South African international Maritime Institute; Head of Department, School of Electrical and Electronic Engineering Science, University of Johannesburg; South African international Maritime Institute
Source: South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 25-34
https://doi.org/10.47348/SAJMET/2023/i1a2

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von Solms, R and von Solms, S
Modern shipping needs to be cybersecure: A South African perspective
South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 25-34 https://doi.org/10.47348/SAJMET/2023/i1a2

Abstract

The traditional standalone operational technology systems that control multiple mechanical systems on board a ship get increasingly integrated with modern information and communications technology (ICT)-related systems. These ICT systems that continuously become interconnected with operational technologies and systems include the Internet-of-Things (IoT), autonomous technologies and the internet with adequate bandwidth etc. The IoT typically employs numerous sensors and captures vast amounts of data, which is processed, transmitted and turned into trusted intelligence to the advantage of all parties involved. Furthermore, modern navigational systems utilise global positioning systems (GPS), radar, sonar and computerised maps. These are used in conjunction with modern communication systems to communicate related data used for accurate navigation. In addition, autonomous technologies are highly dependent on accurate data communicated to them. Thus, it is clear that data is rightly termed ‘the new gold’ in the shipping industry. On the other hand, the maritime industry, like most other industries, is highly vulnerable to cybersecurity attack. As more data is captured, processed and communicated for the more critical shipping activities, the more vulnerable the industry will become to modern cybersecurity threats. Therefore, the interfaces between sensors, devices and different technologies, and the communication of captured data need to be properly secured. Furthermore, many of the shipping industry staff working with technologies where data are captured and communicated need to be educated on how to assist in securing this data. This paper will emphasise the continued use of ICTrelated systems in the shipping industry, and how this digitalisation and smart use of ICT solutions will benefit the maritime industry. In light of this, the purpose of this paper is to highlight the continued vulnerabilities to modern cybersecurity threats, and to discuss some solutions to securing these technologies towards securing the industry as a whole. The paper will also address aspects of educating maritime staff in technology-related areas ranging from the ICT- and cybersecurity-related topics that need to be included in maritime curricula, on the more formal side, to making all staff members more cybersecurity aware, on the more informal side.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Maritime skills development in KwaZulu-Natal: 2022

by | Jan 17, 2024 | SAJMET, SAJMET V2

Maritime skills development in KwaZulu-Natal: 2022

Authors: Leticia A Grimett and Sihle Mzileni

ISSN: 2790-783X
Affiliations: Honorary Research Fellow at the University of KwaZulu-Natal School of Law, South African International Maritime Institute
Source: South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 35-56
https://doi.org/10.47348/SAJMET/2023/i1a3

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Grimett, L A and Mzileni, S
Maritime skills development in KwaZulu-Natal: 2022
South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 35-56 https://doi.org/10.47348/SAJMET/2023/i1a3

Abstract

The Operation Phakisa: Oceans Economy mandate, in line with the United Nations (UN) Sustainable Development Goals, calls for the extension of the benefits of maritime sector development to disadvantaged rural communities. This mandate can only be realised if the rural communities can actively partake in the sector. Research has shown that the coastal rural communities were unaware of the maritime sector, and few were prepared to partake in the maritime value chain. This maritime skills audit sought to determine the skills required by the maritime sector and the ability of the rural community to provide them. The research also sought to determine the geographical and educational gaps within the sector. Initially, the intention of the research was, to discover specific areas where skills shortages and education gaps were found. While the Protection of Personal Information (POPI) Act proved to be a limiting factor, the study still uncovered the structural issues affecting the education and training of rural learners. The maritime sector is primarily urban. Maritime training is also done within the urban sectors. While it should be a simple matter of the rural learners moving to urban centres to study, the deficiencies in the education of the rural populations have created a major systemic bottleneck. This paper provides the results of the maritime business audit, together with the issues facing the rural education sector and the obstacles they present.

The regulation of health-related direct-to-consumer genetic tests in South Africa by the Medicines and Related Substances Act

Smart Ports: Is SADC positioned for Transition?

by | Jan 17, 2024 | SAJMET, SAJMET V2

Smart Ports: Is SADC positioned for Transition?

Author: Leticia A Grimett

ISSN: 2790-783X
Affiliations: Honorary Research Fellow at the University of KwaZulu-Natal School of Law, South African International Maritime Institute
Source: South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 57-70
https://doi.org/10.47348/SAJMET/2023/i1a4

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Grimett, L A
Smart Ports: Is SADC positioned for Transition?
South African Journal of Maritime Education and Training, Volume 2 Issue 1, p. 57-70 https://doi.org/10.47348/SAJMET/2023/i1a4

Abstract

Whereas international trade was previously the preserve of organised business, the digital revolution and the increased popularity of online purchases on the internet has meant that international trade is now easily accessible at an individual level. At both a domestic and international level, the Covid-19 crisis amplified the pressure placed on businesses and consumers to adopt digital technologies, and this has been catalytic in moving the public towards greater reliance on online transactions and a movement away from traditional purchasing practices. Increased global trade at an individual level has put greater pressure on global supply chains, with every link in the supply chain being called upon to perform more effectively and efficiently. Ports, as gates of entry into domestic markets and transshipment routes, have been under increased pressure to conform to the needs of the international trading community. Greater trading volumes have put ports at risk of higher levels of crime by international and domestic criminal syndicates. The changing environmental landscape has meant that ships are being transformed for compliance purposes. Increased concern about water quality and impacts on sensitive habitats has put additional pressure on port authorities. These pressures have led to the creation of smart ports, which are fully automated, taking advantage of the latest technologies, blockchain and artificial intelligence (AI), and state of the art monitoring software and processes, while adhering to and promoting compliance with both the latest environmental protocols and the United Nations (UN) 2030 Sustainable Development Goals (SDGs). In this contribution to the conference, the discussion centres on the challenges facing ports in the Southern African Development Community (SADC) region, in the light of the latest global developments. Smart ports and the drivers towards greater changes are discussed and analysed. Finally, the state of ports in the SADC region are evaluated in the light of the latest global developments in order to determine whether our ports are prepared to transition and changes that can be made to facilitate the process.