Can ownership of reproductive material be transferred?

Can ownership of reproductive material be transferred?

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

NOTES

Can ownership of reproductive material be transferred?

Author: Donrich Thaldar

ISSN: 1996-2177
Affiliations: Professor of Law, University of KwaZulu-Natal; Visiting Scholar, Petrie-Flom Center, Harvard Law School
Source: South African Law Journal, Volume 140 Issue 3, p. 495-504
https://doi.org/10.47348/SALJ/v140/i3a3

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Thaldar, D
Can ownership of reproductive material be transferred?
South African Law Journal, Volume 140 Issue 3, p. 495-504 https://doi.org/10.47348/SALJ/v140/i3a3

Abstract

Regulation 18 of the Regulations Relating to the Artificial Fertilisation of Persons provides for an ownership scheme in reproductive material — eggs, sperm and embryos — outside the human body. Within this regulatory scheme, the following question is pertinent: can ownership of reproductive material, once acquired in terms of reg 18, be transferred to someone else? To answer this question, reg 18 is analysed using well-established tools of statutory interpretation. The conclusion drawn is that a broad interpretation of reg 18 should be followed that allows for the transfer of ownership. Attention is drawn to case law that contradicts this conclusion, but it is shown that the rationale for the relevant decision lacks any depth. Accordingly, the decision should urgently be challenged in the public interest.

In defence of the Pretoria Crits

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

NOTES

In defence of the Pretoria Crits

Author: Emile Zitzke

ISSN: 1996-2177
Affiliations: Associate Professor of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 3, p. 505-520
https://doi.org/10.47348/SALJ/v140/i3a4

Abstract

This note acts as a reply to the critique levelled at the Pretoria Crits by Willem Gravett in two articles published in 2018. The note begins by summarising Gravett’s objections to the Pretoria Crits’ views about the South African legal system and the teaching of law in South African universities. Thereafter, errors of argument are identified that undermine, or are even destructive of, Gravett’s critique. In the course of his five-part rebuttal, the author remedies certain misconceptions about the Pretoria Crits’ views and beliefs. He also identifies how the Pretoria Crits have made important critical contributions to a broader understanding of the nature of South Africa’s legal system and the challenges of teaching law in a transforming society.

Exploring the idea that increasing profits is a legitimate operational requirement: Revisiting a twenty-year-old impulse

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Exploring the idea that increasing profits is a legitimate operational requirement: Revisiting a twenty-year-old impulse

Authors: Bhavna Ramji, Jeremy Phillips & Ihsaan Bassier

ISSN: 1996-2177
Affiliations: Institute for Poverty Land and Agrarian Studies, University of the Western Cape; Director, Cheadle Thompson & Haysom Inc; Associate, Cheadle Thompson & Haysom Inc; Centre for Economic Performance, London School of Economics and Political
Science; Southern Africa Labour and Development Research Unit, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 3, p. 521-549
https://doi.org/10.47348/SALJ/v140/i3a5

Abstract

This article is intended as a catalyst to re-open a debate that was closed perfunctorily and prematurely in the 2000s: is increasing the profits of an already profitable company an operational requirement for purposes of the LRA? We review key retrenchment judgments in these scenarios over the past 20 years and advance two main arguments. First, the debate should be re-opened because the current position that increasing profits is an operational requirement for purposes of the LRA is based on obiter remarks that have been elevated, without in-depth inquiry, to the position of binding authority. Secondly, if the debate is re-opened, there are compelling reasons why increasing profits of an already profitable company should not constitute an operational requirement. To this end, we employ an interdisciplinary approach that combines legal and economic knowledge and demonstrates that, despite earlier opinions, the current position is destructive to the LRA, the position unduly favours employers, and the judicial and scholarly assumptions about the effects of increasing company profits are not always economically correct. Ultimately, we argue that courts’ approach to retrenchments in the case of already profitable companies must be revisited with less deference to employers and with an openness to exploring different understandings of the definition of operational requirements in the LRA.

International best practice and a revised Code for Responsible Investing in South Africa

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

International best practice and a revised Code for Responsible Investing in South Africa

Author: Natania Locke

ISSN: 1996-2177
Affiliations: Associate Professor, Swinburne University of Technology; Visiting Professor, University of Johannesburg
Source: South African Law Journal, Volume 140 Issue 3, p. 550-578
https://doi.org/10.47348/SALJ/v140/i3a6

Abstract

The much anticipated Second Code for Responsible Investing in South Africa (‘CRISA 2’) was published in September 2022. This article explores the evolution of the soft-law environment in which the code operates and reaches the conclusion that the revision was both timely and necessary. A comparison between CRISA 2 and recent trends in investor stewardship codes and regulation shows that CRISA 2 has kept pace in some respects but still lags in others. The move to ‘apply and explain’ falls in line with King IV and the approach of the UK Stewardship Code 2020. The extension of its application to all investment types rather than solely shares is an improvement. The code retains its focus on responsible investment — an aspect only recently adopted internationally in comparative codes — but has opted not to shift to sustainability language despite contemplating this approach in the draft. This may have been a missed opportunity. Aspects that could improve include considering engagement outside of voting; more express duties for service providers, including proxy advisors; the need to ascertain client and beneficiary needs; and more accessible language. Annual reporting and oversight remain with an industry body, which makes greater reporting doubtful.

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

Author: Fatima Essop

ISSN: 1996-2177
Affiliations: Visiting Fellow, Harvard Law School Program on Law and Society in the Muslim World
Source: South African Law Journal, Volume 140 Issue 3, p. 579-610
https://doi.org/10.47348/SALJ/v140/i3a7

Abstract

Although the Constitution of the Republic of South Africa, 1996 provides for the enactment of legislation recognising various systems of personal and family law, no legislation has yet been enacted to recognise Muslim personal laws of marriage, divorce or inheritance. This has not precluded South African Muslims from implementing Muslim personal laws in their private lives, with the assistance of various Muslim ulama bodies. In the sphere of inheritance, Muslim testators ensure that their estates devolve according to the Islamic laws of inheritance by incorporating the Islamic laws of inheritance into their wills. They also delegate their testamentary powers to ulama bodies to determine their Islamic-law heirs. This article explores whether the incorporation by reference of Islamic inheritance law into Islamic wills contravenes the common-law prohibition against incorporation by reference. It also discusses whether delegating testamentary powers to ulama bodies potentially contravenes the commonlaw rule against delegating testamentary powers. Although these practices may contravene the common-law rules, they should be accommodated by developing the common law to uphold the constitutional rights to religious and testamentary freedom.

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

by | Jul 29, 2023 | SALJ, SALJ V140 I3 2023

Affording post-relationship rights to unmarried intimate life partners in South Africa — A comparative analysis of the legal position

Authors: Brigitte Clark & Belinda van Heerden

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Honorary Visiting Researcher, Oxford Brookes University; Retired Justice of the Supreme Court of Appeal of South Africa
Source: South African Law Journal, Volume 140 Issue 3, p. 611-646
https://doi.org/10.47348/SALJ/v140/i3a8

Abstract

Unmarried cohabitation has become an international phenomenon. A wide diversity of legislative and judicial approaches to cohabitation exist in different jurisdictions, and there are divergent views on whether to protect either the traditional family or vulnerable partners. This debate appears to be central to how to protect vulnerable parties: countries adopt either a contractual laissez-faire approach based on the protection of marriage or a default status-based legislative cohabitation regime. After analysing the international situation, we address the need for South African law to protect life partners or those in religious marriages not yet recognised by law when the relationship is terminated by death or separation. We note that in South Africa, the choice to marry or cohabit permanently is often illusory in the context of the lives of many vulnerable partners. Recent case law has highlighted the need to encourage Parliament to pass legislation to protect such relationships. The South African Law Reform Commission has produced a Discussion Paper which inter alia provides for the recognition of certain life partnerships but still excludes myriad relationships requiring protection in this country. We argue that South African family law urgently needs to draft legislation on these relationships to reflect the lives of many vulnerable South Africans.