Alternative assessment in undergraduate legal education in South Africa: A positive side effect of the pandemic?

Alternative assessment in undergraduate legal education in South Africa: A positive side effect of the pandemic?

Authors: JG Horn and L van Niekerk

ISSN: 1996-2193
Affiliations:BProc LLB LLM MA (HES) LLD, Senior lecturer, University of the Free State; LLB PG DIP (FINANCIAL PLANNING LAW) LLM MA (HES), Lecturer, University of the Free State
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 21 – 39
https://doi.org/10.47348/SLR/2024/i1a2

Abstract

The global Covid-19 pandemic resulted in a transition to online teaching and learning, which prompted higher education institutions to reconsider their assessment methods. Soon, implementing the most appropriate assessment approach to encourage students to engage with the study material on an ongoing basis and which would lead to a deeper understanding of module content became an exciting challenge in the completely remote learning scenario. Grappling with this challenge, lecturers in the Faculty of Law at the University of the Free State implemented alternative assessment methods in a Legal Skills first-year module and a Law of Property third-year module. By using the action research method to implement change, observe the change and critically reflect on the outcome, the authors report on the valuable lessons that they have learned from this exercise. This contribution provides an account of the benefits and drawbacks of traditional versus alternative assessment methods and a critical perspective on the practicality of using alternative assessment tools in undergraduate programmes.

The meaning of “financial assistance” in terms of section 45 of the Companies Act 71 of 2008

The meaning of “financial assistance” in terms of section 45 of the Companies Act 71 of 2008

Author: Etienne Olivier

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Lecturer, University of the Western Cape
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 40 – 60
https://doi.org/10.47348/SLR/2024/i1a3

Abstract

In South African law, a company that wishes to provide financial assistance to one of its directors, a related juristic person, or to a person related to a director or related juristic person, must comply with the requirements contained in section 45 of the Companies Act 71 of 2008 to validly execute such a transaction. The Act contains no precise definition of the term “financial assistance”, causing commentators to speculate that the reach of section 45 may be extremely wide. However, in Constantia Insurance Co Ltd v Master, Johannesburg High Court 2023 5 SA 88 (SCA), the Supreme Court of Appeal interpreted “financial assistance” narrowly. In this contribution, the Court’s restrictive interpretation of the term is critically analysed. I argue that the Court’s decision was correct and that its interpretation of “financial assistance” is consistent with the objectives of South African company law because it is likely to improve business efficiency without unduly prejudicing a company’s stakeholders. I also propose that the necessity for related-party financial assistance provisions should be reconsidered.

Merging the unmergeable: The distortion of competition law principles by constitutional rights in the Constitutional Court [Discussion of Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC)]

Merging the unmergeable: The distortion of competition law principles by constitutional rights in the Constitutional Court [Discussion of Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC)]

Author: Lauren Loxton

ISSN: 1996-2193
Affiliations:BCom PPE LLB, BCL, Researcher, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 61 – 77
https://doi.org/10.47348/SLR/2024/i1a4

Abstract

The aspirations of the Constitution of the Republic of South Africa, 1996 are expressly recognised in competition legislation. Competition authorities and courts must, accordingly, adjudicate competition matters in a manner that gives effect to the Constitution. This has resulted in the Constitutional Court assuming jurisdiction over appeals from the Competition Appeal Court, thereby raising questions about the Constitutional Court’s competence to adjudicate specialised competition matters that cannot be understood solely through the lens of constitutional interpretation. The Constitutional Court’s decision in Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC) is a cautionary tale that exposes the dangers that arise when the Court enters this specialised realm of the law and imposes constitutional interpretation without engaging with the principles of competition law.

The case concerned a dispute about whether a merger in the healthcare sector would lead to an increase in the price of healthcare. The Constitutional Court’s judgment emphasises the constitutional imperative to quell the harmful effects of the inequalities that loom over South Africa’s post-apartheid economy, but it is not legally sound in all respects. This note explores the weaknesses in the judgment under the following themes: the approach to jurisdiction that contradicts jurisprudence and untenably extends the Constitutional Court’s jurisdiction; the problematic assertion that precedent severely constrains the appellate powers of the Competition Appeal Court; and the Constitutional Court’s inconsistent appreciation of the specialised nature of competition law and its consequent failure to engage with the evidence.

This analysis concludes that this attempt to import constitutional rights into competition law, without adequately engaging with competition law itself, reveals an urgent need to re-examine the true scope of the Constitutional Court’s jurisdiction and its powers to adjudicate complex and highly specialised areas of the law.

A title deed should only be cancelled if there is convincing evidence that it does not reflect the true state of affairs [Discussion of Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022)]

A title deed should only be cancelled if there is convincing evidence that it does not reflect the true state of affairs [Discussion of Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022)]

Author: Reghard Brits

ISSN: 1996-2193
Affiliations:BCom (Law) LLB LLD, Extraordinary Professor, University of the Western Cape; Research Fellow, Stellenbosch University
Source: Stellenbosch Law Review, Volume 35 Issue 1, 2024, p. 78 – 92
https://doi.org/10.47348/SLR/2023/i1a5

Abstract

The court in Agnes v Tobeka (42040/2018) 2022 ZAGPJHC 814 (19 October 2022) ordered the cancellation of five deeds of transfer to restore the original owners as the registered owners of the property in question. The order was based on a finding that the sale in execution of the property two decades before was invalid because the creditor did not follow the correct judicial process. Because the transfer pursuant to the sale in execution was invalid, all subsequent transfers were invalid as well, with the result that the current registered owner was not the rightful owner. This note does not question the manner in which the court applied the substantive law regarding invalid transfers of property. In light of the negative nature of the deeds registry system, it is correct for a court to order the cancellation of a title deed that does not reflect the rightful owner. Instead, the note takes issue with the manner in which the court drew conclusions from a very unclear factual matrix based on almost no documentary or other evidence. The argument is made that a title deed (such as a deed of transfer) should be regarded as prima facie correct and should only be cancelled if the person who alleges that the deed is inaccurate can supply sufficient evidence to prove that person’s allegation on a balance of probabilities. The registered owner should not have to disprove mere allegations of inaccuracy or prove that all previous transfers were valid.

The Copyright Amendment Bill and the right to property in section 25 of the Constitution: A discussion in support of expansive copyright exceptions and limitations for educational purposes

The Copyright Amendment Bill and the right to property in section 25 of the Constitution: A discussion in support of expansive copyright exceptions and limitations for educational purposes

Author Bongiwe Zungu

ISSN: 2521-2591
Affiliations: Lecturer in Commercial Law, University of Cape Town
Source: South African Intellectual Property Law Journal, 2024, p. 1-29
https://doi.org/10.47348/SAIPL/v12/a1

Abstract

The relationship between copyright law and the right to education has been a prominent topic for several decades. Attainment of the right to education is inextricably linked to copyright and the materials under it. Therefore, the proper construction of copyright rules is essential. The current copyright regime has been criticised for being out of touch with the educational needs of learners and students in South Africa. The South African government has been engaged in copyright reform to remedy this issue and other issues raised against the current regime. This reform process resulted in the Copyright Amendment Bill B13F of 2017. In June 2020, the President addressed a letter to Parliament and expressed concern that various copyright exceptions in the Bill, including ss 12A,
12B and 12D through which the attainment of the right to education is promoted, run the risk of violating the property rights of copyright holders under s 25(1) of the Constitution. This paper evaluates this claim. As part of this evaluation, this paper also considers whether intellectual property constitutes property under s 25 of the Constitution. The latter question is important because the current jurisprudence of the Constitutional Court on s 25 relates to the validity of the state’s regulation of corporeal property. The claim has been evaluated by copyright scholars before.

This paper builds on the work of other scholars by considering the nature of intellectual property and its theoretical underpinnings. The consequence of recognising intellectual property as property for constitutional purposes is that it will be protected against arbitrary state interference and unlawful expropriation under s 25 of the Constitution. To contextualise this, it should be reiterated that references to intellectual property in this paper include copyrights, patents, trademarks, designs and other traditional forms of intellectual property. This paper will demonstrate that an inquiry into the constitutionality of copyright exceptions and limitations in the Copyright Amendment Bill is unlikely to result in a finding of constitutional invalidity under s 25(1) of the Constitution.

The ‘tax cost’ of cross-border use of intellectual property: A South African perspective on transfer pricing

The ‘tax cost’ of cross-border use of intellectual property: A South African perspective on transfer pricing

Author Tracy Gutuza

ISSN: 2521-2591
Affiliations: Associate Professor, University of the Witwatersrand
Source: South African Intellectual Property Law Journal, 2024, p. 30-56
https://doi.org/10.47348/SAIPL/v12/a2

Abstract

IT 14302, a decision of the Tax Court, is the first South African judgment dealing with the substantive application of the transfer pricing provisions in the Income Tax Act. The decision addresses the application of the transfer pricing provisions to cross-border payments for the use of intellectual property, specifically from foreign subsidiaries to a South African company. The article considers the use of terminology such as brand, goodwill and intellectual property by the parties and the court in determining the tax liability of the taxpayer and second, the application of the transfer pricing methodologies to determine the arm’s length price for the ‘good’ licensed by the South African taxpayer company to its associated foreign subsidiaries.

The regulation of copyright in digital trade: A case for the Southern African Development Community

The regulation of copyright in digital trade: A case for the Southern African Development Community

Author Vongai Chimeri

ISSN: 2521-2591
Affiliations: Post doctoral fellow, Department of Mercantile Law, University of the Free State
Source: South African Intellectual Property Law Journal, 2024, p. 57-80
https://doi.org/10.47348/SAIPL/v12/a3

Abstract

The protection of intellectual property rights, particularly copyright in digital trade, has raised concerns about the applicability of existing frameworks to the digital paradigm, especially considering that these frameworks were not negotiated in anticipation of intangible assets and content as central components of commercial transactions. Although digital trade presents an opportunity, particularly for small to medium enterprises in the Southern African Development Community to access new trading platforms and new business opportunities, it has also led to a surge of unlawfully distributed copyright-protected music, films, art, photos, scripts, books and software over the internet thereby causing serious losses for copyright holders. Enforcing copyright in digital trade is difficult as the infringer may be based in a different jurisdiction, often hiding under the veil of anonymity. It is in this context that this article examines the regulation of copyright in the Southern African Development Community and questions whether the existing framework effectively harmonises copyright law in a way that accommodates the technological developments in international trade. The article argues that the regulation of copyright in the Southern African Development Community is fragmented and, in many instances, outdated in dealing with the emerging digital paradigm. To this end, the article recommends the development of a regional framework on copyright. It submits that a regional framework that supports the creation, protection, administration and enforcement of copyright in digital trade can promote innovation and enhance competition thereby enabling Southern African Development Community countries to effectively participate in the digital trade.

Governing climate adaptation innovation in Africa: A South African case study

Governing climate adaptation innovation in Africa: A South African case study

Author Desmond O Oriakhogba

ISSN: 2521-2591
Affiliations: Associate Professor, Department of Private Law, University of the Western Cape, South Africa
Source: South African Intellectual Property Law Journal, 2024, p. 81-104
https://doi.org/10.47348/SAIPL/v12/a4

Abstract

Despite contributing little to global warming, Africa continues to be adversely impacted by climate change in multifaceted ways including in agriculture and food systems, human health, water and ocean systems, transportation, energy and industrialisation. Global efforts to mitigate the climate crisis are woefully inadequate and Africa-driven initiatives to tackle these challenges are increasingly focussed on regional and national climate adaptation strategies aimed at reducing climate risk, helping society adjust and building resilience to the present and future impact of climate change. These strategies include developing innovation and technology systems especially for climate adaptation in Africa. To be effective, such strategies must be guided by evidence of the innovation capabilities and require appropriate governance systems at the regional and national levels in Africa. Conducted by way of desk research, as part of a broader research project involving two other African countries, this case study focuses on South Africa and examines the climate adaptation innovation of LiquidGold Africa (Pty) Ltd to demonstrate Africa’s capacity to innovate climate adaptation solutions. The research also examines the potential of the innovation governance systems in South Africa, such as intellectual property (IP) regimes, to harness existing climate adaptation innovation for substantial impact. In this regard, the paper briefly sets out some broad background issues relating to IP, technology transfer and access to adaptation innovation from the perspective of international climate change negotiations. It then undertakes a survey of South African climate change challenges, the legal, policy and institutional frameworks on climate adaptation, and the climate adaptation innovation governance landscape before focusing specifically on the work of LiquidGold.

Governing climate adaptation innovation in Africa: A case study of Nigeria

Governing climate adaptation innovation in Africa: A case study of Nigeria

Author Titilayo Adebola

ISSN: 2521-2591
Affiliations: Director, Centre for Commercial Law and Theme Coordinator, International Intellectual Property and Information Law, School of Law, University of Aberdeen.
Source: South African Intellectual Property Law Journal, 2024, p. 105-133
https://doi.org/10.47348/SAIPL/v12/a5

Abstract

As part of a project on Governing Climate Innovation in Africa, this paper examines Nigeria’s climate adaptation innovation architecture. Through comprehensive doctrinal and desk research, it explores the key laws, policies, institutions and initiatives shaping the country’s adaptation responses to climate change. The paper underscores the intersections of climate adaptation innovation and intellectual property rights in the context of Nigerian realities and presents notable case studies from the food and agricultural sectors: Rotimi Williams (Kereksuk Rice Farm and Resolute 4.0) and Babajide Oluwase (Ecotutu). The paper is structured around three primary objectives. First, it maps the legal and policy frameworks governing climate change in Nigeria, addressing international commitments alongside regional and national instruments. Second, it analyses the selected climate adaptation innovations, unpacking their contributions and interrogating the role that intellectual property rights currently play or could potentially play in enhancing these innovations. Third, it offers strategic recommendations to strengthen climate adaptation in Nigeria, including adopting a joined-up approach to ensure coherence across laws and policies, as well as introducing supportive legal and non-legal measures to build a resilient and sustainable climate innovation ecosystem in Nigeria.

Innovations in climate adaptation: Lessons from Uganda’s National Agricultural Research Organization (NARO)

Innovations in climate adaptation: Lessons from Uganda’s National Agricultural Research Organization (NARO)

Author Anthony C.K Kakooza

ISSN: 2521-2591
Affiliations: Lecturer and Ag. Head of the Commercial Law Department, School of Law at Makerere University, Uganda
Source: South African Intellectual Property Law Journal, 2024, p. 134 – 157
https://doi.org/10.47348/SAIPL/v12/a6

Abstract

New weather phenomena are raising concerns across the globe. Similarly, changing weather patterns are negatively impacting food security due to their effects on the agricultural sector. These effects include early or late maturity of crops which has poorly affected cultivation, the emergence or spread of pest diseases, and harsh weather conditions, such as flooding or drought, that hinder crop production. Consequently, countries like Uganda are taking drastic action to address these challenges before it is too late.

Climate adaptation is, therefore, a key strategic measure being employed in Uganda to address the current and future impacts of climate change. A key government agency driving innovations in the agricultural sector related to climate adaptation is the National Agricultural Research Organisation (NARO).

This study focuses on the work of NARO and its efforts in generating various innovations that contribute to climate adaptation. These efforts include establishing partnerships with private agencies, conducting training sessions for farming communities, and more. The study underscores the importance of monitoring intellectual property rights (IPR), particularly in scenarios where NARO’s work is disseminated across the country. It also highlights that these innovations are supported by an Intellectual Property (IP) legal framework, which facilitates their administration and protection. However, the study identifies factors that undermine the effectiveness of the legal framework, emphasising the need to strengthen the IP legislative structure. Strengthening this framework would enable countries like Uganda to better manage the utilisation and enforcement of their IPRs while addressing climate adaptation. The study argues that a robust IP legal framework is a critical enabler for the effective use of innovations in climate adaptation, ultimately leading to improved management of climate change.