The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The transformed water regulatory regime of South Africa [Discussion of South African Association for Water User Associations v Minister of Water and Sanitation [2020] ZAGPPHC 252 (19 June 2020)]

Author: Germarié Viljoen

ISSN: 1996-2193
Affiliations: LLB LLM LLD Associate Professor, North-West University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 148 – 160
https://doi.org/10.47348/SLR/2022/i2a8

Abstract

A completely new water law dispensation, amounting to a regime change, was introduced with the National Water Act 36 of 1998. The water regulatory framework changed from one that linked access to water to land ownership and differentiated between private and public water, to a framework that applies to “all water” in South Africa and that acknowledges that “water belongs to all people”. To facilitate the notion that water belongs to all people, the legislature formally introduced the concept of public trusteeship into the country’s water law. Since the promulgation of the Act, there has been no attempt in reported case law to provide a thorough exposition of the impact of the concept of public trusteeship in the water law context. This case note explores how the High Court for the first time deliberated on the impact on the nature, form, extent and limits of use rights that can be acquired in water as a natural resource in the new regulatory regime.

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

by | Jun 17, 2022 | SLR, SLR V33 I2

Strengthening the recognition of strategic water source areas in decisions on water use licences [Discussion of Endangered Wildlife Trust v Director- General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019)

Author: Amanda ZT Mkhonza

ISSN: 1996-2193
Affiliations: LLB LLM Lecturer, University of Cape Town
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 161 – 175
https://doi.org/10.47348/SLR/2022/i2a9

Abstract

There has been increasing recognition of the importance and value of strategic water source areas (“SWSAs”). SWSAs form about 10% of South Africa’s landscape and provide 50% of the country’s water. Their strategic importance lies in their significant ability to provide for the country’s economic, agricultural and basic human needs. One such SWSA has been at the centre of various court hearings, due to proposed mining activities in the Mabola Protected Environment – which falls squarely within the Enkangala Drakensberg SWSA. In May 2019, the Water Tribunal handed down a judgment pertaining to the water use licence application for these proposed mining activities in Endangered Wildlife Trust v The Director-General, Department of Water and Sanitation (WT 03/17/MP) [2019] ZAWT 3 (22 May 2019). The applicants challenged the decision to grant the water use licence on seven grounds, all revolving around how public authorities should exercise their statutory mandates when dealing with the country’s most scarce natural resource – water. As important as the judgment is for underscoring the balance between the use of natural resources and economic gain, it also highlights a trite point – SWSAs are not regulated in South Africa’s environmental legislation and as such, their legal protection is questionable. Although various scientific research documents and guidelines point to the need to protect SWSAs, the Tribunal insisted that these do not meet the “relevant considerations” requirement as per the National Water Act 36 of 1998 and could thus not be taken into account when coming to its final decision. This case note has three objectives. First, to provide a summary of the case and the Tribunal’s findings. Secondly, to reflect critically on the lessons learned from the Tribunal’s consideration of the scientific reports calling for SWSA protection. Thirdly, to suggest a way forward for promoting the protection of SWSAs in environmental law.

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

by | Jun 17, 2022 | SLR, SLR V33 I2

The best interests of the child in the face of COVID-19 travel restrictions: Analysing the rights of children and parents [Discussion of CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020)]

Author: Angelo Dube

ISSN: 1996-2193
Affiliations: BA LLB LLM MBL LLD Professor, University of South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 176 – 186
https://doi.org/10.47348/SLR/2022/i2a10

Abstract

On 20 March 2020 the President of South Africa, Cyril Ramaphosa, announced a national lockdown as an interim response by the South African Government to the COVID-19 pandemic. This followed a declaration of a state of national disaster by the Minister for Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma. As part of the 21-day national lockdown, the Minister issued regulations aimed at stemming the rise in infections across the country. Part of the restrictions imposed by the regulations was to limit free movement which included regulating crossprovincial travel without a permit. In CD v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020), the High Court of South Africa was confronted with an application in which the parents of two minors requested permission to travel across provinces to fetch their minor children and return them to their place of residence. The issue before the court was whether the regulations permitted the movement of children between parents and their caregiver.

Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states

Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states

by | May 1, 2022 | SLR, SLR V33 I1

Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states

Authors: SC Vollmer and DT Vollmer

ISSN: 1996-2193
Affiliations: BA (Denver) LLB LLD (Stellenbosch), Associate, Resilient LLP, Ontario; BEng (McMaster) MSc (UOIT), PhD student and CGS-D researcher (York University, Canada)
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 8 – 41
https://doi.org/10.47348/SLR/2022/i1a1

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Vollmer, SC and Vollmer, DT
Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 8 – 41
https://doi.org/10.47348/SLR/2022/i1a1

Abstract

This article examines the responsiveness of the African human rights  system to sexual and gender-based violence (“SGBV”) from a collaborative  framework combining both legal and computational methodologies. This  alternative lens is proposed to address the need for urgent attention to the  increasing SGBV and other human rights violations of persons based on their  real or perceived sexual orientation, gender identity and expressions, and/  or sex characteristics (“SOGIESC”), as current research has not yet fully  understood the reasons for the enduring gap between the norms and their  implementation. Primarily, the focus of this research provides an intersection  of the (un)responsiveness of the African human rights system to SGBV and  the (in)adequacy of state responses to SGBV, including laws and practices  that exacerbate SGBV, with a focus on the Southern African Development  Community (“SADC”).  The Universal Periodic Review (“UPR”), under the auspices of the United  Nations Human Rights Council, was used to determine to what extent African  states recognise and articulate positions on SGBV – results of which were  used to assess further support through human rights mechanisms under the  African human rights system. This article considers the international human  rights record of African states on the issues of SGBV SOGIESC-based discrimination and violence. Through a systematic evaluation  of the UPR record, the work presented here provides a framework for  developing recommendations and/or observations for an integrated approach  to advancing SOGIESC rights under the African human rights system. An  artefact of the work is the development of a preliminary computational  software program that was demonstrated to have captured trends in the  aforementioned information with increased efficiency, potentially lowering  costs and increasing accessibility. 

Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

by | May 1, 2022 | SLR, SLR V33 I1

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

Authors: Kennedy Kariseb

ISSN: 1996-2193
Affiliations: BJuris LLB (UNAM) LLM LLD (UP), Lecturer, School of Law, University of Namibia
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 42 – 56
https://doi.org/10.47348/SLR/2022/i1a2

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Kariseb, K
The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 42 – 56
https://doi.org/10.47348/SLR/2022/i1a2

Abstract

By using the mechanism of the Special Rapporteur on the Rights of Women  in Africa (SRRWA) as a matrix, this article assesses the responsivity of the  mechanism of the SRRWA in combating violence against women (“VAW”). The  article argues that the mechanism of the SRRWA has taken up the challenge of  contributing, in a substantive manner, to norms development relating to VAW.  It finds that although VAW is not an explicit thematic area in the mandate  of the SRRWA, compared to the United Nations Human Rights Council’s  special rapporteur on violence against women, its causes and consequences,  in practice it features quite distinctly in the work of the mechanism. This is  indicative of the modest focus, response and contribution of the mechanism to  this intractable human rights issue. 

Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states

Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law

by | May 1, 2022 | SLR, SLR V33 I1

Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law

Authors: Tegan Snyman and Annika Rudman

ISSN: 1996-2193
Affiliations: LLB LLM (Stell), PhD candidate, Department of International and European Union Law, Erasmus, University Rotterdam; LLB LLM PhD (Gothenburg), Professor of International Law, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 57 – 77
https://doi.org/10.47348/SLR/2022/i1a3

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Snyman, T and Rudman, A
Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 57 – 77
https://doi.org/10.47348/SLR/2022/i1a3

Abstract

Under Article 1 of the Maputo Protocol “women” are defined as “persons  of the female gender”. Notwithstanding this definition, transgender women,  persons whose gender is female but who were assigned male at birth, are  yet to be recognised or protected under the Protocol. On the contrary, on  the African continent, transgender women are some of the most vulnerable  persons in society. Due to their frequent misidentification as homosexual  men, and widespread criminalisation of homosexuality, these women  are regularly discriminated against and victims of stigma and violence.  Furthermore, because of the denial of their gender identities, these women  are deprived of their legal recognition and subsequent protection of their  human rights. This article considers discrimination against transgender  women and contrasts it with the provisions of the Maputo Protocol. This  article utilises the teleological approach to treaty interpretation, together  with postmodern intersectional feminist legal theory and queer legal theory  as well as fundamental principles of international human rights law such as  dignity, equality and non-discrimination. Finally, the article considers the  recognition and protection of transgender women in light of the proposed  SADC GBV Model Law.