Clinical Legal Education and Social Justice – A Perspective from the Wits Law Clinic

by | Oct 28, 2019 | SLR, SLR V29 I2

Clinical Legal Education and Social Justice – A Perspective from the Wits Law Clinic

Authors Dakalo Singo, Alicia Raymond

ISSN: 1996-2193
Affiliations: Supervising Attorney and Lecturer, Wits Law Clinic, University of the Witwatersrand; Supervising Attorney and Lecturer, Wits Law Clinic, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 295 – 313

Abstract

Against the backdrop of a post-Apartheid South Africa operating under a constitutional democracy, this article considers the contemporary relationship between clinical legal education ("CLE") and social justice. To provide context, the article: presents an overview of university law clinics; addresses their role within the Bachelor of Laws ("LLB") degree; and gives brief insight into their historical relationship to social justice. In outlining the conceptual nature of social justice, the article identifies common themes which the authors use to formulate a contemporary definition of social justice, that is contextually specific to South Africa, and which is rooted in justice and Ubuntu. Having analysed social justice as a concept, it is argued that CLE as a teaching methodology is the most appropriate component of the LLB degree for the effective teaching of lessons in social justice. Using the authors’ own experiences as clinicians at the Wits Law Clinic, the article provides two practical examples highlighting how social justice lessons may be learnt by law students participating in a CLE programme. The article concludes with a brief discussion of challenges that hinder the optimal realisation of social justice teaching and the lessons attainable from such teaching.

The Taxation of Trusts in SADC Member States

by | Oct 28, 2019 | SLR, SLR V29 I2

The Taxation of Trusts in SADC Member States

Authors Izelle du Plessis

ISSN: 1996-2193
Affiliations: Senior Lecturer: Department of Mercantile Law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 270 – 294

Abstract

Many Southern African Development Community ("SADC") member states use trusts and they have proved to be very popular in some of these states. This article examines the way in which income acquired by a trust is taxed in a number of SADC member states. It determines whether the systems used by the SADC member states can be placed in the classification systems identified by academics in respect of certain common-law states. It also notes a number of trends in the taxation of trusts in the relevant states.

Employment Discrimination Law into the Future

by | Oct 28, 2019 | SLR, SLR V29 I2

Employment Discrimination Law into the Future

Authors Christoph Garbers, Peter le Roux

ISSN: 1996-2193
Affiliations: Associate Professor, Faculty of Law, Stellenbosch University; Executive consultant, ENSafrica
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 237 – 269

Abstract

Important amendments to the Employment Equity Act 55 of 1998 ("EEA") were introduced in 2014, notably conferring jurisdiction on the Commission for Conciliation, Mediation and Arbitration in employment discrimination cases, inserting the phrase ‘arbitrary ground’ in section 6(1) of the EEA, explicitly providing for (and proscribing) unfair discrimination in terms and conditions of employment and also including a brand new onus provision in section 11. In this contribution, the impact of these amendments on our conceptual understanding of employment discrimination law is considered in the context of: First, world-wide trends in the development of employment discrimination law and the South African adoption of employment discrimination law in line with those trends; secondly, the correct approach to interpretation of the EEA in light of ILO Convention 111 and the Constitution,1996; thirdly, the judicial development of principles applicable to employment discrimination over the past 25 years, which precedent provides a lot of certainty about the conceptual foundations of our employment discrimination law; and, fourthly, the initial academic views, experiences and judicial approaches after the amendments came into effect. Ultimately, the authors argue that these amendments do not signify, nor do they require, any significant departure from the pre-amendment conceptual approach to employment discrimination established through precedent over the past 25 years.

Registrability of Rights in the Deeds Registry: The Twofold Test Revisited

by | Oct 28, 2019 | SLR, SLR V29 I2

Registrability of Rights in the Deeds Registry: The Twofold Test Revisited

Authors PJ Badenhorst

ISSN: 1996-2193
Affiliations: Associate Professor, Deakin University; Visiting Professor, Nelson Mandela University
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 220 – 236

Abstract

In practice the courts use a so-called twofold test to determine whether rights are real, and therefore, registrable in the deeds registry. Personal rights are not registrable. In terms of the twofold test, in order for a right to be registrable, the following requirements must be satisfied: (a) the intention of the person who creates the purported real right must be to bind not only the present owner of the land, but also successors in title; and (b) the nature of the right or condition must be such that registration thereof results in a subtraction from the dominium of the land against which it is registered. The article provides an overview of the application of the twofold test by the Supreme Court of Appeal ("SCA"). The overview of case law shows the successful application of the test by the SCA and its applicability has become settled law. A more basic formulation of the twofold test with a different sequence and more emphasis on the acquisition of an entitlement test is proposed. It is shown that rights established in respect of land which restrict the landowner’s entitlements to use or dispose of land are usually recognised as real rights by the courts. It is suggested that other possible restrictions on the entitlement of disposition in the case of problematic rights, which are registrable in accordance with deeds office practice, such as restraints against alienation, rights of pre-emption or reversionary rights, should be revisited. The dominance of the twofold test does not mean that other theoretical tests to distinguish between real and personal rights should not be used.

Mining in Nature Reserves – Providing Partial Legal Certainty where Ambiguity Prevailed

by | Oct 28, 2019 | SLR, SLR V29 I2

Mining in Nature Reserves – Providing Partial Legal Certainty where Ambiguity Prevailed

Authors Alexander Paterson

ISSN: 1996-2193
Affiliations: Professor, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 199 – 219

Abstract

Protected areas form a central element of South Africa’s conservation strategy. Certain activities hold great potential to undermine the conservation objectives underlying protected areas, and the Government has accordingly imposed prohibitions on these activities taking place within certain categories of protected areas. One such prohibition imposed by both the National Environmental Management: Protected Areas Act 57 of 2003 and the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRD") relates to prospecting and mining activities within nature reserves. Notwithstanding the apparent simplicity of its design, the implementation of this legal mechanism has proven problematic in practice and triggered several recent court battles. One of the most prominent of these related to an attempt by Barberton Mines (Pty) Ltd to undertake prospecting activities in the Barberton Nature Reserve situated in Mpumalanga. The dispute traversed through the North Gauteng High Court and the Supreme Court of Appeal ("SCA"), with the Constitutional Court ultimately declining leave to appeal in July 2017. One would anticipate that determining the existence and legal boundaries of a nature reserve to be a relatively simple task, but what this series of judgments clearly illustrates is that this is not the case. They provide evidence of the potential confusion caused by both legislative drafting anomalies and the manner in which some authorities exercise their executive powers in terms of the applicable legislative framework. Cumulatively, the judgments held potential to resolve this confusion, but as this note seeks to highlight, perhaps they only partially did so, a concerning reality given the prevalence of many yet to be exercised prospecting and mining rights having been granted within the boundaries of the country’s nature reserves.

Subconscious Advocacy – Part 2: Verbal Communication in the Courtroom and Ethical Considerations

by | Oct 28, 2019 | SLR, SLR V29 I2

Subconscious Advocacy – Part 2: Verbal Communication in the Courtroom and Ethical Considerations

Authors Willem Gravett

ISSN: 1996-2193
Affiliations: Senior Lecturer, University of Pretoria
Source: Stellenbosch Law Review, Volume 29 Issue 2, 2018, p. 175 – 198

Abstract

Social science has been used with increasing success in a wide variety of human endeavours. For example, marketing, human relations and the delivery of health services are among the widely expanding applications of the classic disciplines of psychology, sociology, anthropology and social psychology. More recently, trial lawyers have also shown increased interest in applying the research findings and theoretical insights of social science to litigation. After all, every law and legal institution is based upon assumptions about human nature and the manner in which human behaviour is determined. Although trial lawyers have been using subconscious nonverbal and verbal persuasion techniques for centuries, social science has recently provided empirical support for trial practice theories that heretofore have been based solely on folklore, intuition and experience. I aim to show that principles of human behaviour derived from social psychological laboratory and field research illuminate the behaviour of actors in the courtroom, equip trial lawyers to better represent their clients, and even suggest ways in which the trial system could be improved. Some scholars claim that the increasing body of psychological literature on the effects of subconscious verbal and nonverbal persuasion has enabled trial lawyers to improve their courtroom effectiveness to the point where they can "covertly" control how fact-finders decide cases. It is true that social scientists have discovered a myriad of factors that affect judicial decision-making, but that have nothing to do with the merits of the case. However, by communicating this information to trial lawyers, the social scientists have actually decreased the likelihood that these extraneous influences will affect judicial decisions. They have identified existing barriers to rational decision-making, and have devised strategies to reduce their impact, and thereby improve the chances that fact-finders will render better, more informed, and more rational judgments.