‘Privacy by design’ in the EU General Data Protection Regulation: A new privacy standard or the Emperor’s new clothes?

by | Aug 27, 2022 | SALJ, SALJ V139 I3 2022

‘Privacy by design’ in the EU General Data Protection Regulation: A new privacy standard or the Emperor’s new clothes?

Author: Dusty-Lee Donnelly

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 3, p. 541-576
https://doi.org/10.47348/SALJ/v139/i3a4

Abstract

Privacy by design (‘PbD’) is a conceptual framework that has been widely adopted as a helpful, practical framework for organisations to ‘translate’ legal data protection principles into concrete technical design and organisational policies. It can offer a harmonising framework for multiple, overlapping legal compliance obligations. Privacy is engineered directly into the design of new technologies, as a default setting, while still achieving full functionality. The article explains the seven foundational principles of the concept with detailed cross reference to the relevant conditions of lawful processing under the Protection of Personal Information Act 4 of 2013 (‘POPIA’), offering the first in-depth analysis of PbD in a South African context. PbD is now an express legal obligation in art 25 of the European Union’s General Data Protection Regulation (2016). The article sketches the background to that important development and provides an in-depth critique of the three key shortcomings of art 25. It recommends that instead of following the EU example, South Africa’s Information Regulator could promote the adoption of PbD through a guidance note and in approved codes of conduct. It concludes that a PbD approach is already (albeit only impliedly) required for compliance with the conditions of lawful processing under POPIA.

A Hohfeldian analysis of the Bill of Rights

by | Aug 27, 2022 | SALJ, SALJ V139 I3 2022

A Hohfeldian analysis of the Bill of Rights

Author: Quentin du Plessis

ISSN: 1996-2177
Affiliations: Member of the Johannesburg Bar
Source: South African Law Journal, Volume 139 Issue 3, p. 577-622
https://doi.org/10.47348/SALJ/v139/i3a5

Abstract

In the scholarship on rights, one name is pre-eminent: Hohfeld. Despite this, there are two ways in which the Hohfeldian analysis of rights remains underappreciated. The first is that it is commonly assumed that the Hohfeldian analytic system applies only to private-law rights. The second is that South African lawyers remain mostly unfamiliar with the Hohfeldian analytic system. By providing a Hohfeldian analysis of the South African Bill of Rights, this article aims to set the record straight in both respects.

Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?

by | Aug 27, 2022 | SALJ, SALJ V139 I3 2022

Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?

Author: Fareed Moosa

ISSN: 1996-2177
Affiliations: Associate Professor, Department of Mercantile & Labour Law, University of the Western Cape
Source: South African Law Journal, Volume 139 Issue 3, p. 623-649
https://doi.org/10.47348/SALJ/v139/i3a6

Abstract

Taxation of legal costs in the high courts of South Africa is a quasi-judicial proceeding during which a Taxing Master assesses the fairness of a bill of costs, quantifies the amount payable to a cost creditor, and issues an allocatur which certifies the sum payable by a cost debtor. It is argued that this legal process, which is regulated by Uniform Rule 70 read with Uniform Rule 69, implicates a cost debtor’s fundamental right, under s 34 of the Constitution of the Republic of South Africa, 1996, to fair dispute resolution at any independent forum. In terms of Uniform Rule 70(3B) (a), prior to the enrolment of a bill for taxation, a cost debtor is entitled ‘to inspect such documents or notes pertaining to any item on the bill’. This article argues that the inspection envisaged is a pre-taxation discovery procedure aimed at enabling a cost debtor to determine which items on a bill of costs are objectionable, and the grounds therefor. With reference to relevant judicial precedent and the established principles of interpretation, this article hypothesises that, having regard to the clear, unambiguous, peremptory language of Uniform Rule 70(3B)(a), as well as the purpose sought to be achieved by the right of inspection, the law has, in this context, excluded the operation of the cost creditor’s common-law right to assert legal professional privilege as regards documentation pertaining to any item claimed in the bill of costs. This is unlike the position prevailing at a pre-trial discovery procedure catered for in Uniform Rule 35. This article also argues that, in accordance with s 39(2) of the Constitution, the broad construction of the right of inspection under Uniform Rule 70(3B)(a) advanced here promotes both a cost debtor’s fundamental right in s 34 of the Constitution, and the values of justice and the rule of law which are deeply imbricated in the Bill of Rights.

When the legal pathways for sound financial management and spatial justice collide: The case of South African cities

by | Aug 27, 2022 | SALJ, SALJ V139 I3 2022

When the legal pathways for sound financial management and spatial justice collide: The case of South African cities

Author: Anél du Plessis

ISSN: 1996-2177
Affiliations: Professor of Law and NRF South African Research Chair in Cities, Law and Environmental Sustainability, Faculty of Law, North-West University
Source: South African Law Journal, Volume 139 Issue 3, p. 650-677
https://doi.org/10.47348/SALJ/v139/i3a7

Abstract

This article probes one aspect of spatial (in)justice and slow spatial transformation in South Africa’s cities. The focus is not so much on case studies or an analysis of persisting spatial injustices. Instead, the article focuses on the legal premises and the apparently colliding legal pathways for sound municipal finance management and spatial justice. It specifically questions, through a mixed research method, the extent to which the co-existence of the Spatial Planning and Land Use Management Act 16 of 2013 (‘SPLUMA’) and the Local Government: Municipal Finance Management Act 56 of 2003 (‘MFMA’), as two Acts in the suite of post-apartheid South African local government legislation, runs the risk of thwarting local government efforts to transform social and physical space in the country’s cities. This question is considered through an exploratory review of the Acts, empirical findings, and a consideration of the limited theory on the interoperability of laws.

Constitutional futures and the South African demos: Time for some univocal sovereignty?

by | Aug 27, 2022 | SALJ, SALJ V139 I3 2022

Constitutional futures and the South African demos: Time for some univocal sovereignty?

Author: Tracy-Lynn Field

ISSN: 1996-2177
Affiliations: Claude Leon Chair in Earth Justice and Stewardship, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 139 Issue 3, p. 678-716
https://doi.org/10.47348/SALJ/v139/i3a8

Abstract

This article engages and extends the proposition that the debate on constitutionalism in the postcolony should restore the sovereignty of the demos to a central position. The notion of a unified South African demos is contested, but the arguments against working with the presently constituted unified demos are not overwhelming. With democratic sovereignty as the key focus, the question is how the demos’ lifeblood of present consent can be injected into the current South African constitutional order. Drawing on Grewal & Purdy’s development of Tuck’s reconstruction of original constitutionalism, the article presents six variables for understanding democratic self-rule over time: unified and splintered sovereignty; univocal and multitudinous constitution-making; popular authorship; and present consent. Taking into account Arato’s post-sovereign model of constitution-making, the article argues that South Africa’s constitutional order may be leaning too far in the direction of splintered sovereignty, multitudinous constitution-making and a preoccupation with the act of founding. Instead, the unified sovereign, univocal constitution-making and the imperative of present consent need to be firmly placed on the agenda. The article concludes by considering four ways in which the unified sovereign could be brought back into the realm of constitution-making in South Africa.