Precaution against What? – The Electronic or E-authentication Frameworks of the United Kingdom, Canada and South Africa

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Precaution against What? – The Electronic or E-authentication Frameworks of the United Kingdom, Canada and South Africa

Authors Mzukisi N Njotini

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Private Law, Faculty of Law, University of Johannesburg. The author wishes to acknowledge that this research was commenced and completed while he was in the employ of the College of Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 185 – 206

Abstract

Information and communication technologies (ICTs) provide opportunities and can cause setbacks to society. On the one hand, they have revolutionised the manner in which people, businesses or governments communicate and share information. On the other hand, ICTs have, inter alia, provided opportunities for the misappropriation of information in online settings. Because ICTs have become a source from which information is kept and stored, they contribute to information becoming a public good that requires legal recognition. In addition, this acceptance has meant that measures to secure information should be introduced to avert those who may wish to access, use, alter or interfere with information using whatever means possible. These measures are called e-authentication measures. They are preventive in nature and aim to validate and corroborate certain credentials necessary for the granting of authority to access information. In this article, a comparative approach to e-authentication is followed. It looks at the e-authentication structures adopted in the United Kingdom, Canada and South Africa. This approach is selected with a view to ensure that the e-authentication agenda in South Africa responds adequately to the danger of information being misappropriated online.

International Law and Indigenous People: Self-Determination, Development, Consent and Co-Management

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

International Law and Indigenous People: Self-Determination, Development, Consent and Co-Management

Authors George N Barrie

ISSN: 2522-3062
Affiliations: Professor Emeritus, Law Faculty University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 171 – 184

Abstract

The principle of self-determination in international law can refer to political aspirations as well as territorial aspirations. Regarding the latter, the maturation of the discourse on self-determination has provided indigenous peoples with control over their own destiny. This has come about due to an evolutionary development of the principle of self-determination in international law. Self-determination has provided an efficient platform for indigenous peoples to claim their rights to their territories. The true spirit of self-determination has manifested itself as respect for their land without which indigenous peoples cannot fully enjoy their economic and cultural identity. The adoption of the UN Declaration on the Rights of Indigenous Peoples is a vivid illustration of such an outcome. The article analyses the extent to which self-determination encompasses territorial rights for indigenous peoples. This analysis illustrates to what extent self-determination has served as a positive force in the quest of indigenous peoples to territorial rights and how their territorial claims have altered the modern approach to the right to self-determination. Under recent developments indigenous peoples have gained access to international law as ‘actors’ gaining greater control over their own future based on the notion of consent between states and indigenous peoples.

Cooperation in Outer Space Activities: South Africa’s Role as a Member State of the African Union and BRICS

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Cooperation in Outer Space Activities: South Africa’s Role as a Member State of the African Union and BRICS

Authors Anél Ferreira-Snyman

ISSN: 2522-3062
Affiliations: Professor, School of Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 141 – 170

Abstract

The complex nature of outer space activities and the high cost involved in the development of space technologies have increasingly necessitated inter-state cooperation and partnerships. Global issues such as environmental protection, natural disaster management and climate change have again highlighted the need for cooperation between states, also in the realm of outer space. Pressure on national budgets as a result of various global economic crises experienced over the last few years, has further incentivised cooperation in the structuring of space programmes. Moreover, as a result of the significant increase in space actors, outer space has become a congested and competitive environment. Greater international cooperation is, therefore, imperative in order to ensure that outer space activities are carried out peacefully, for the benefit and in the interest of all nations and that outer space is preserved for future generations. The socio-economic benefits have made the development of space programmes attractive to a number of developing states, including states in Africa. Africa is becoming one of the most important markets for telecommunication development. Sustained development in this area will, however, be dependent on the safety and integrity of space assets. In this regard, outer space cooperation to develop instruments and norms regulating the space domain is imperative. Effective cooperation between developed and developing countries is, however, dependent on the negotiation of a number of contentious issues, including the use of the Geostationary Orbit, the mitigation of space debris and the militarisation of outer space. The formulation and successful application of measures addressing these issues are reliant on cooperation between space-faring and non-space-faring states. It is submitted that South Africa, as a member of both the African Union and BRICS, has an important role to play in this regard.

Journal Note: A South African Perspective to the Pay Now Argue Later Tax Liability Principle: Lessons to Learn for Botswana

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

Journal Note: A South African Perspective to the Pay Now Argue Later Tax Liability Principle: Lessons to Learn for Botswana

Authors Ame Rebecca Masuku

ISSN: 2522-3062
Affiliations: Admitted Attorney in the Courts of the Republic of Botswana; Lecturer, Department of Law, University of Botswana
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 412 – 421

Abstract

The Pay Now Argue Later principle is central to the administration of taxes in many jurisdictions. The principle requires that an aggrieved taxpayer wishing to object or appeal decisions of the revenue authority should pay the tax liability imposed for the very assessment they wish to contest. In its rudimentary form, Pay Now Argue Later posits that the aggrieved taxpayer’s liability is undisputed and the outcome of their objection or appeal can only result in a variance of the liability undoubtedly imposed. This note examines the Botswana and South African approach to the principle of Pay Now Argue Later. The examination of the said notion is in the Income Tax Acts and Value Added Tax Acts of both jurisdictions. This note concedes that although the rule is often riddled with criticism and speculations of the inherent ‘unfairness’, it is a necessary tool for the revenue authorities to effectively perform their duty without room for the taxpayer to use frivolous and vexatious tactics to avoid tax liability. In light of this, this note seeks out the ‘best’ way to apply the principle with regard to the taxpayers’ rights and the revenue authority’s rights. The note posits that the South African perspective can provide a platform for Botswana to learn and appreciate a better way to apply the Pay Now Argue Later rule regarding the rights of the parties involved and the legitimacy of the objections and appeal process.

The Veiled Muslim Witness and the Accused’s Right to a Fair Trial in Adversarial Legal Systems

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

The Veiled Muslim Witness and the Accused’s Right to a Fair Trial in Adversarial Legal Systems

Authors Willem Gravett

ISSN: 2522-3062
Affiliations: Senior Lecturer in Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 380 – 411

Abstract

In a number of recent cases across common-law jurisdictions, female Muslim witnesses have been denied their right to wear the niqab while testifying in court. Ultimately, in each of these cases, the right to a fair trial—and the perceived threat to that right—overrode the witness’s express desire to veil. However, a fundamental fact not recognised in any of these judgments is that a Muslim woman’s refusal to remove her veil has drastic implications for her access to courts in both the criminal and civil contexts, thereby implicating her ability to participate as a citizen. It raises the critical question whether such a state of affairs should be tolerated in a pluralistic society. This contribution investigates this question by analysing the right to confrontation from historical, epistemological and comparative perspectives, including its limitations. It then evaluates the rationales that the courts have advanced for holding that the veiled Muslim witness violates the accused’s right to a fair trial, namely it deprives the court of the ability to observe the witness’s demeanour, it infringes on the right to cross-examine the witness, and it defies the ‘symbolic’ value of confrontation.

The Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17-An Aborted Take Off

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

The Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17-An Aborted Take Off

Authors Angelo Dube

ISSN: 2522-3062
Affiliations: Associate Professor, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 362 – 379

Abstract

On 17 July 2014, Malaysia Airlines Flight MH17, a civilian aircraft on an international flight was downed whilst overflying the airspace above Donetsk Oblast, Ukraine, leading to the loss of a life for all on board. The flight manifest indicated fifteen crew plus 283 passengers on board. There were eleven affected countries whose nationals perished. The United Nations Security Council swiftly issued a press statement in which it called upon all member states to cooperate with investigations; and to assist in bringing all those responsible to justice. Thus, the United Nations Security Council adopted Resolution 2166 in 2014. A year later, on Malaysia’s insistence, a draft resolution was tabled before the United Nations Security Council to create a tribunal to punish those responsible for the Flight MH17 disaster. This endeavour failed when the Russian Federation used its veto power to block the draft resolution. Whilst the efforts to give justice to victims of the crash are commendable, there remains some doubt over the efficacy of the piecemeal approach to punishing crimes of international air law, especially given the high politicisation of international law itself. The questions to be answered, therefore are whether current international air law sufficiently provides for the punishment of perpetrators of crimes involving aircraft and whether the veto by Russia impedes or advances the fight against impunity in international air law.