International Human Rights Law and the Access of Children of Asylum Seekers to Social Assistance in South Africa

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

International Human Rights Law and the Access of Children of Asylum Seekers to Social Assistance in South Africa

Authors Tivoneleni Edmund Lubisi, Puleng Letuka & Ademola Oluborode Jegede

ISSN: 2522-3062
Affiliations: Legal Researcher, Correctional Service Home, South Africa; Senior Lecturer, School of Law, University of Venda; Professor of Law, School of Law, University of Venda
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 3 – 34

Abstract

There is a massive presence of asylum seekers in South Africa. Amongst this population are children who need social assistance from the state distributed as ‘grants’, due to their dependence, vulnerability and developmental requirements. South Africa is a state party to international instruments on human rights and has a regulatory framework including the Constitution which allows for the application of these instruments and guarantees the right to social security for everyone. This article focuses on whether the existing corpus of international instruments on human rights and relevant domestic regulatory frameworks may allow children of asylum seekers the access to social assistance in South Africa. While demonstrating that the access to social assistance for children of asylum seekers is implied under international human rights instruments, the article establishes that this has not found expression in the application of existing legislation on social assistance in South Africa. By deploying an appropriate interpretive approach, courts may respond to this normative gap and thereby assist in guaranteeing the access of these children to social assistance in South Africa.

Emergence of Illegality in the Underlying Contract as an Exception to the Independence Principle of Demand Guarantees

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Emergence of Illegality in the Underlying Contract as an Exception to the Independence Principle of Demand Guarantees

Authors Cayle Lupton & Michelle Kelly-Louw

ISSN: 2522-3062
Affiliations: Assistant Lecturer, Department of Mercantile Law, University of Johannesburg; Professor, Department of Mercantile Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 35 – 71

Abstract

It is questionable whether illegality in the underlying contract of a demand guarantee can or should constitute a valid exception to this instrument’s independence (autonomy) principle. From earlier English case law and scholarly discussions it appears that the acceptance of such an exception is contentious and, even if it is recognised, its extent remains uncertain. The English courts have previously indicated that they are open to accepting illegality in the underlying contract as an exception to the principle of independence of demand guarantees, but have not developed the exact parameters of such an exception. In the past, there were no South African court cases where illegality in the underlying contract was accepted, or even considered, as a possible exception to the independence principle of a demand guarantee. In a recent South African case, Mattress House (Proprietary) Ltd v Investec Property Fund Ltd, we find the first evidence of a South African High Court’s willingness to accept the possibility of illegality in the underlying contract as constituting a valid exception. In this article we discuss this South African case, which provides general guidance on the possibility of accepting such an exception under the South African law. South Africa is always persuasively influenced by English law in relation to demand guarantees. Therefore, we also discuss the English law.

The European Union’s General Data Protection Regulation (GDPR) and its Implications for South African Data Privacy Law: An Evaluation of Selected ‘Content Principles’

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

The European Union’s General Data Protection Regulation (GDPR) and its Implications for South African Data Privacy Law: An Evaluation of Selected ‘Content Principles’

Author Anneliese Roos

ISSN: 2522-3062
Affiliations: Professor, Department of Private Law
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 72 – 108

Abstract

After a lengthy legislative process, South Africa implemented the Protection of Personal Information Act 4 of 2013 (POPI Act) on 1 July 2020. The POPI Act is an omnibus data-protection Act that conforms to the former benchmark for data-protection laws worldwide, namely, the 1995 EU Data Protection Directive. At the time of drafting the proposed Bill that would later become the Act, the South African Law Reform Commission emphasised the importance of a South African data-protection Act that complies with international standards on data protection, especially with the EU’s Directive. The Directive, in Article 25, imposed a prohibition on the transfer of personal data to non-member countries that do not ensure an adequate level of protection when personal data of their citizens are processed. South Africa’s Act needed to comply with the standard set in the Directive for the protection of personal information if South Africa wanted to remain part of the international information technology market. In 2016, the EU adopted the General Data Protection Regulation (GDPR) that replaced the 1995 Directive with effect from May 2018. The question now arises whether the South African Act still meets the minimum standards for data protection set out by this Regulation and whether amendments to the Act are needed. This article compares certain provisions of the GDPR with similar provisions of the POPI Act in order to establish whether the South African Act meets the standard set in the GDPR.

Monitoring the Realisation of the Right to Basic Education: The South African Jurisprudence and Structural-Process-Outcome Indicators

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Monitoring the Realisation of the Right to Basic Education: The South African Jurisprudence and Structural-Process-Outcome Indicators

Author Serges Kamga

ISSN: 2522-3062
Affiliations: University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 109 – 144

Abstract

Under international law, the right to education should be available, accessible, acceptable, and adaptable—or comply with the four As. This right is provided for by the South African Constitution and numerous policies. Yet it remains illusory for thousands of South Africans. Against this backdrop, this article seeks to clarify indicators to monitor the implementation of this right. To this end, unpacking the South African jurisprudence on the right to basic education, it relies on the structural-process-outcome indicators model to unveil what needs to be done to secure a tangible enjoyment of the right to basic education. Based on this approach, it finds that the right to basic education is multidimensional and that its constitutive elements include immediate and non-discriminatory access to school buildings; infrastructure; the right to teachers and non-educational staff; the right to enjoy religion, language, and culture; as well as free transport for learners living far from the school. Ultimately, in light of the South African jurisprudence, the structural-process-outcome indicators explain what is effectively expected to operationalise the four As. Lessons gleaned from this approach will enable all stakeholders in South Africa and other parts of Africa to advance the right to basic education.

Journal Note: The Canadian Courts’ Approach to the ‘Duty to Consult’ Indigenous Peoples: A Comparative Overview

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Journal Note: The Canadian Courts’ Approach to the ‘Duty to Consult’ Indigenous Peoples: A Comparative Overview

Author George Barrie

ISSN: 2522-3062
Affiliations: Emeritus Professor, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 145 – 168

Abstract

Articles 18, 19 and 23 of the United Nations Declaration on the Rights of Indigenous Peoples 2008 and Articles 6 and 15 of the ILO Convention Concerning Indigenous and Tribal People No 169 of 1989, generated a concept of the ‘duty to consult’ indigenous peoples in matters that adversely affect their interests. The question as to whether this ‘duty to consult’ had not developed into a rule of customary international law, was raised at the International Law Association’s meeting in Sofia in 2012. To answer this question a survey of state practice needs to be undertaken. This article focusses on the state practice of Canada regarding the ‘duty to consult’ as illustrated by decisions of that country’s courts. It can be implied that Canadian courts see the ‘duty to consult’ as an obligation which must be adhered to. Canadian courts have recognised the ‘duty to consult’ since the judgment in R v Sparrow in 1990, but the elaboration of the concept came strongly to the fore in a trilogy of cases in 2004 and 2005 in the Haida Nation, Taku River Tlingit First Nation and Mikisew Cree First Nation cases. Since then, the concept has been incisively discussed and applied in the Canadian Supreme Court in the Rio Tinto, Little Salmon, Moses and the Behn/Moulton Contracting cases from 2010 to 2013. The above developments are encapsulated in the 2017 Ontario Superior Court case of Saugeen First Nation. The example of Canadian courts accepting ‘the duty to consult’ its indigenous peoples has manifested itself in other jurisdictions, particularly in Australia and recently in South Africa; and indicates an evolving international customary law norm.

Journal Note: Hmong ‘Marriage by Capture’ in the United States of America and Ukuthwala in South Africa: Unfolding Discussions

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Journal Note: Hmong ‘Marriage by Capture’ in the United States of America and Ukuthwala in South Africa: Unfolding Discussions

Author Lea Mwambene

ISSN: 2522-3062
Affiliations: University of the Western Cape, South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 169 – 193

Abstract

‘Marriage by capture’ among the Hmong people in the United States of America and ukuthwala in South Africa both take the form of the mock abduction of a young woman for the purpose of a customary marriage. The noteworthy point about these two customary marriage practices is that, although Hmong marriage by capture takes place in the context of a minority community in a liberal state, and ukuthwala occurs in a postcolonial state, courts in these jurisdictions convert these marriage practices to the common law offences of rape, assault, and abduction. This article reflects on the accused-centred approach in the case of People v Moua, in which the court invoked the cultural defence, and the victim-centred approach in Jezile v S, which severed cultural values from the rights of the woman. It questions whether the two communities in question, in their respective liberal and postcolonial settings, influence the attitudes of the courts in cases involving rape, assault, and abduction charges. The main argument proffered is that both approaches may encourage communities to continue marriage abduction practices without bringing them to the attention of investigative organs, with adverse human rights implications for the women and girls affected. The ultimate purpose of this conversation, therefore, is to show how the approaches of the courts to the recognition or non-recognition of these customary practices affect the rights of girls and women who encounter institutions of law that alienate people belonging to minority cultural groups, and often perpetuate injustice.