Research Articles (Mercantile Law)

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Incorporating sustainable development principles in Africa’s investment treaty-making
(Juta Law Journals, 2024-12) Qumba, Mmiselo Freedom
African states have long been critical of the international investment law regime, believing that international investment agreements (IIA) are misaligned with their sustainable development efforts. As a result, they have crafted modern IIAs to address the legitimacy crisis within the investment law regime. Despite improvements in Africa’s new, modern IIAs, some countries continue to conclude bilateral investment treaties (BITs) framed in line with older-generation agreements. An overview of the recent trends in treaty drafting shows that African countries have embraced IIAs as important tools for sustainable development. This article revisits the International Law Association ‘New Delhi Declaration of Principles of International Law’ to formulate concrete legal solutions not only as binding legal principles for investors within the African continent but also as incentive to improve sustainability through self-monitoring rather than international or domestic enforcement. This underscores the importance for treaty interpreters and drafters to carefully recognise the integration and application of a sustainable development framework. Accordingly, the article integrates lessons from African experiences and articulates the sustainable development-oriented principles and concepts that should be considered by policy makers and treaty drafters when developing new model BITs or renegotiating the old generation IIAs.
The protection of small enterprises in South Africa : a comparison with jurisdictions in the USA, India and the UK
(University of South Africa, 2024-12) Scott-Ngoepe, Tshepiso; tshepiso.scott@up.ac.za
Small enterprises form the backbone of many economies. However, despite their contribution to sustained economic growth, most small enterprises fail within five years. The Consumer Protection Act 68 of 2008 (CPA) in South Africa encompasses a mechanism that provides protection to small enterprises as consumers. This article assesses the extent of protection that is provided to small enterprises as consumers in terms of the CPA and seeks to establish whether this protection is warranted. Desktop research was conducted to draw a comparative analysis with three other jurisdictions, namely Michigan in the United States of America, India and the United Kingdom. The article posits that protecting small enterprises as consumers under the CPA is warranted. However, the article recommends revisiting the threshold applicable to juristic persons under the CPA and also applying it to franchisees that operate as juristic persons.
Overview of the role of selected consumer protection bodies in the regulation of prices and access to redress under the Consumer Protection Act 68 of 2008
(Editura Universitara Danubius, 2024-04) Magau, Phemelo; Chitimira, Howard; Phemelo.Magau@up.ac.za
The Consumer Protection Act 68 of 2008 (CPA) seeks to promote the achievement and maintenance of a fair, accessible, efficient, sustainable and responsible market place for consumer products and services in South Africa. Moreover, the CPA seeks to provide an accessible, consistent, harmonised, effective and efficient system of redress for consumers. Notably, the CPA provides that the supplier should not supply or enter into an agreement to supply any goods or services at a price that is unfair, unreasonable, or unjust. This is generally aimed at combating any problems that are suffered by consumers when accessing goods and services in South Africa. Accordingly, various regulatory bodies and related role-players were established to enforce consumer rights and provide redress mechanisms to vulnerable and affected consumers. These consumer protection bodies and related roleplayers include the National Consumer Commission (NCC), the National Consumer Tribunal (NCT), provincial consumer courts, ordinary courts and other alternative dispute resolution agencies. These bodies and role-players are statutorily obliged to resolve consumer disputes in South Africa. However, there are some uncertainty challenges regarding the jurisdiction of ordinary courts and consumer protection regulatory bodies in relation to disputes that relate to the consumers’ right to fair, just and reasonable prices, terms and conditions of goods and services. This article discusses the role of the NCC, the NCT, provincial consumer courts, ordinary courts and other alternative dispute resolution agencies in the regulation of prices for goods, services and access to redress for affected consumers under the CPA. This is done to provide some recommendations that could resolve jurisdictional and regulatory challenges in relation to the price and access to goods and services under the CPA.
An overview of the extent of the powers of South African competition authorities in the regulation of price discrimination under the Competition Act 89 of 1998 in the context of digital transformation
(North-West University, 2024-07) Magau, Phemelo; Phemelo.Magau@up.ac.za
The purpose of the Competition Act 89 of 1998 as amended (the Competition Act) is, among others, to promote the efficiency, adaptability and development of the economy as well as to provide consumers with competitive prices and product choices. In line with this purpose, the Competition Act provides that a dominant firm is prohibited from engaging in price discrimination if such conduct will likely substantially prevent or lessen competition, which would be to the detriment of consumers. Notably, the Competition Act has established various bodies to regulate competition and act against any conduct prohibited by this Act in South Africa. These bodies include the Competition Commission, the Competition Tribunal, and the Competition Appeal Court. Notwithstanding the prohibition of price discrimination, the Competition Act does not expressly provide adequate enforcement tools for competition authorities to combat uncompetitive practices in the digital era. Moreover, the Competition Act does not expressly grant these statutory bodies clear roles and mandates on providing consumers with adequate and suitable redress when they have been victims of algorithmic price discrimination. With recent technological developments, electronic commerce (e-commerce), and digital transformation, consumers have become vulnerable to various challenges such as excessive pricing, data breaches and algorithmic pricing. The online and digital markets are characterised by complex transactions, innovative technologies and business practices which expose all consumers, including vulnerable consumers, to different risks. As such, the role of the competition authorities needs to be recalibrated to enhance consumer protection on the pricing of goods and services. To this end this paper seeks to investigate the role and ambit of the powers of these competition authorities in the regulation of price discrimination in the context of digital transformation and the digital economy. This is done to assess whether the competition authorities have the necessary tools of enforcement to ensure that markets are competitive and to combat uncompetitive conduct in the digital economy and online markets.
The role and mandate of the motor industry ombudsman of South Africa : addressing prospects and challenges to enhance consumer protection
(North-West University, 2024-12) Tshabalala, Thapelo; Magau, Phemelo; phemelo.magau@up.ac.za
The Motor Industry Ombudsman of South Africa (MIOSA) is an industry ombud recognised under the Consumer Protection Act 68 of 2008 (CPA). The MIOSA regulates the interaction and provides for alternative dispute resolution in the automotive and related industries in South Africa. Moreover, the MIOSA is an impartial organisation that focusses on the resolution of disputes where a deadlock has been reached between the automotive and related industries and their customers, as well as relationships among participants in the automotive and related industries to the benefit of the parties. The role of the MIOSA is to make recommendations in cases referred to it where parties cannot reach common ground and are unable to arrive at mutually acceptable agreements following a dispute. This analysis explores and proffers possible solutions to address the challenges that impede the MIOSA from discharging its role and mandate under the CPA effectively in resolving consumer disputes in the South African automotive industry.
Product liability in an age of development risks : should South Africa reconsider adopting a development risk defence?
(Cambridge University Press, 2024-10) Tennant, Sarah-lynn; Van Heerden, C.M. (Corlia); corlia.vanheerden@up.ac.za
To provide protection against harm caused by defective, unsafe products and to promote product safety, the law of product liability has developed as a specialized area of the law of delict (tort). The vexing question is, who should bear such liability? This contribution interrogates the notorious EU development risk defence, which exonerates manufacturers that meet certain stringent requirements for undiscoverable development risks in products that consequently inflict harm on consumers. In particular, it considers the election by South Africa, which recently adopted a “strict” product liability regime with the introduction of the Consumer Protection Act 2008, not to adopt such a defence. The purpose of this contribution is to consider the nature and scope of the development risk defence as contained in article 7(e) of the European Union (EU) Product Liability Directive and to determine whether it was prudent for South Africa to steer clear of incorporating a similar defence in its new statutory product liability regime.
Liability for damage caused by loadshedding : a consideration of whether collective action for redress by consumers in South Africa is possible
(North-West University, 2024-12) Scott, Tshepiso; tshepiso.scott@up.ac.za
The Consumer Protection Act 68 of 2008 (CPA) seeks to advance the social and economic welfare of consumers in South Africa by protecting vulnerable consumers, amongst other things. Loadshedding, which is characterised by a chronic shortage in the supply of electricity, was introduced into South African society in 2007 as a mechanism to distribute the demand for electricity. Its purpose is to relieve the stress on the national power grid when the demand is high to prevent a national blackout. One of the impacts of the power surge when electricity is restored to the power grid is damage to consumer property such as electrical appliances. In section 61 the CPA makes provision for consumers to institute an action for liability flowing from damage caused by “goods”. This paper argues that section 61 may be a good legal basis for collective redress by consumers in South Africa against power suppliers such as Eskom and the local municipalities.
Excluding life and insurance benefits from insolvent estates : a comparative study of South Africa, England and Wales, and the United States of America
(North-West University, 2024-10) Mabe, Zingapi; Mibiriri, Edith; zingapi.mabe@up.ac.za
In South Africa, two principles apply to the exclusion of certain assets from an insolvent estate. First is the common-law principle that even the desperate insolvent is entitled to the basic necessities of life. Hence his entitlement to keep certain assets and to protect assets belonging to third parties. Secondly, the "creditor advantage" principle requires the trustee of the insolvent estate to collect assets to benefit the creditors of the estate. One of the assets excluded from the insolvent estate is the life and disability insurance policy benefits of the insolvent. These benefits are excluded, however, only if the beneficiary is the insolvent and the exclusion will not apply where the beneficiary is a third party such as a solvent spouse. However, section 21 of the Insolvency Act 24 of 1936 vests the assets of the solvent spouse in the trustee of the insolvent estate upon the latter's sequestration. This vesting is out of sync with the principle aimed at protecting assets belonging to third parties. In England and Wales a trust is created to protect the insurance policy benefits of a spouse or child of the bankrupt but does not extend to any other third party. In the United States of America the proceeds of a life insurance policy benefit will form part of the estate if the bankrupt owned it before the bankruptcy began or if the debtor acquired or became entitled to it within 180 days after the filing date. Where the debtor nominated a third party as the beneficiary of an unmatured policy, the power of appointment becomes part of the estate of the debtor. As the nominated third party acquires only an inchoate expectation, the third party's expectation of that unmatured life insurance policy benefit forms part of the bankrupt estate. This paper compares the treatment of life and disability insurance benefits in insolvent estates in South Africa with the position in England and Wales and the United States of America to establish whether there are lessons to be learnt which may assist in modelling an insolvency law process for South Africa which will consider the affected members of society.
Did the CPA shut the bathroom doors for transgender and non-binary people? A critical legal reflection of Section 9(2) of the CPA
(North-West University, 2024-12) Scott, Tshepiso; Van Dyk, Obakeng; tshepiso.scott@up.ac.za
The Consumer Protection Act 68 of 2008 (CPA) introduced a variety of consumer rights that are intended to protect consumers in their engagement with suppliers. Amongst these rights is the consumer's right to equality in the consumer market. Section 8 of the CPA sets out practices that are considered to be prohibited discriminatory marketing practices; while section 9 of the CPA provides instances that constitute reasonable grounds for differential treatment in certain circumstances. In particular, section 9(2) of the CPA provides that a supplier may provide and designate facilities that are separate but equal for the exclusive use of each gender. Alternatively, the supplier is permitted to offer access to a facility to one gender exclusively. Over the years, the LGBTQI+ community has increased awareness around gender stereotypes; and stressed that not all persons conform to a binary-gender allocation. Therefore, the question that arises is whether section 9(2) of the CPA, in permitting the designation of facilities to exclusively one gender, is unfairly discriminating against transgender and non-binary persons and is therefore unconstitutional. To the extent that the provision is constitutional, the paper considers whether the continued practice of having gender-segregated bathrooms to the exclusion of transgender and non-binary persons is constitutional.
The timing of a proposed settlement in insolvency can be a gamble : Corruseal Corrugated KZN v Zakharov [2023] ZAWCHC 48
(Nelson Mandela University, 2024-10-01) Boraine, A. (Andre), 1957-; Mabe, Zingapi
In Corruseal Corrugated KZN v Zakharov ([2023] ZAWCHC 48 (Corruseal Corrugated)), the court considered whether a donation made to a debtor after a provisional sequestration order (but before the final order of sequestration) with a view to enabling the debtor to settle debts against their estate did in fact settle the debtor’s debts to the sequestrating creditor, thereby leaving the sequestrating creditor without locus standi to pursue a final order of sequestration. The court also enquired whether the respondent debtor was factually insolvent. The general legal position is that, upon sequestration of a person’s estate, all their assets at the date of sequestration and all assets acquired after (during) sequestration (except for exempt or excluded assets) vest in the Master of the High Court, and thereafter in the trustee once appointed (s 20 of the Insolvency Act 24 of 1936 (Insolvency Act); Smith, Van der Linde and Calitz Hockly’s Law of Insolvency (2022) par 5.2). Thus, a donation accepted and received by the insolvent after sequestration also vests in the insolvent estate (Bertelsmann, Evans, Harris, Kelly-Louw, Loubser, Roestoff, Smith, Stander, Calitz, De la Rey and Steyn Mars: The Law of Insolvency in South Africa 10ed (2019) par 9.5)
Facilitating automatic exchange of information on blockchain : a South African perspective
(Nelson Mandela University, 2024-04-10) Kabwe, Ruddy; Ncube, Princess
Exchange of information is a mechanism that enables tax authorities to share tax information across borders. Exchange of information curtails harmful practices such as tax evasion and tax avoidance by promoting cooperation between tax authorities. Recent world events have seen unprecedented levels of globalisation and novel income-earning structures. Taxpayers earn income from streams that were previously unavailable. These developments have led tax authorities to implement policies that focus on improved financial transparency and better multilateral cooperation. This article argues for the implementation of blockchain technology to facilitate exchange of information in South Africa. Blockchain is a ledger that records and stores information on an online network. Blockchain's features make it conducive for use in cross-border administration and exchange of tax information. Blockchain creates a platform for financial transparency because data stored on the blockchain is reliable and accurate. Tax information is exchanged in real time, thereby reducing tax authorities' administrative burden and enhancing cooperation.
An unjust interpretation of Section 116(1) of the Consumer Protection Act 68 of 2008 : the impact of First Rand Bank Limited v Ludick GP (unreported) 2020-06-18 Case no A277/2019
(Nelson Mandela University, 2024-10-01) Scott, Tshepiso
One of the key objectives of the Consumer Protection Act (68 of 2008) (CPA) is to ensure that consumers are provided with “an accessible, consistent, harmonised, effective and efficient system of redress” (s 3(1)(h) of the CPA). This has not been an easy task. Some difficulties have arisen with the interpretation of the detailed, yet unclear, system of redress set out in section 69 of the CPA, particularly in relation to when the court can be approached, and whether there is an implied hierarchy that applies in the dispute-resolution process (see generally Imperial Group (Pty) Ltd v Dipico 2016 ZANCHC 1; Joroy 4440 v Potgieter 2016 (3) SA 465 (FB); Imperial Group t/a Auto Niche Bloemfontein v MEC: Economic Development, Environmental Affairs and Tourism Free State Government 2016 (3) SA 564 (FB); Motus Corporation v Wentzel [2021] ZASCA 40). In other instances, the reluctance of industry members to cooperate with accredited industry ombuds has made the work of these dispute-resolution agents challenging (see generally Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd [2021] ZAGPPHC 309; see also definition of “alternative dispute resolution agent” in s 1 of the CPA). Furthermore, an aspect that has undermined the key objective of the CPA to ensure that consumers have access to redress is the interpretation that has been afforded to section 116(1) of the CPA following the decision of the High Court in FirstRand Bank Limited v Ludick (GP (unreported) 2020-06-18 Case no A277/2019) (Ludick). Section 116(1) of the CPA regulates prescription in terms of the statute. It provides that consumers ought to approach the consumer court or the National Consumer Tribunal (Tribunal) within a period of three years from the date of the act or omission, or, in the case of conduct that is ongoing or continuing, from the date upon which, the conduct in question ceased. The court in Ludick considered the equivalent provision in the National Credit Act (34 of 2005) (NCA), namely, section 166(1) of the NCA. Before Ludick, the Tribunal adopted a less stringent approach when interpreting section 116(1) of the CPA. Where circumstances required, such as where a consumer had referred a matter to an alternative-dispute-resolution agent (ADR agent), prescription was considered to have been suspended or interrupted (see, for e.g., Lazarus v RDB Project Management CC t/a Solid [2016] ZANCT 15 par 31; Mpofu v Terry’s Auto [2017] ZACONAF 5 par 19; Stemmet v Motus Corporation [2018] ZANCT 150 par 8; Littlewood Building and Garden Services Projects CC v Hyundai Automative SA [2018] ZANCT 91 par 33; Auto Glen Motors (Pty) Ltd t/a Auto Glen v Barnes In re: Barnes v Auto Glen Motors (Pty) Ltd t/a Auto Glen [2018] ZANCT 51 par 21; Mountville Mkhalemba Lubisi v Imperial Select Multifranchise (Pty) Ltd [2018] ZANCT 141 par 45).
South Africa’s NINA debtor plight : lessons from the Scottish consumer debt relief system post the Covid-19 pandemic
(Juta Law Journals, 2023-12) Boterere, Shammah God'swill; Boraine, A. (Andre), 1957-
In this article, the authors consider the plight of the so-called No Income No Asset (NINA) debtors against the backdrop of debt relief measures provided for this category of debtors who find themselves in a debt trap. It is a well-known fact that South African insolvency law does not provide sufficient debt relief measures for all types of debts, and those, like the NINA debtors, who are effectively excluded from the relief afforded by the sequestration and ultimately rehabilitation procedures of the Insolvency Act 24 of 1936 have no proper statutory measure to provide a discharge of debt in instances where they may desperately need it. It is submitted that the debt restructuring mechanisms provided by the administration procedure and debt review measure, are not sufficient since these do not offer a discharge. Reference is made to the newly proposed debt intervention procedure that may provide some relief in this regard, but it is argued that the legislature needs to consider further procedures to deal with their plight. With the view of making some recommendations for reform, aspects of mainly the Scottish system of debt relief measures are also considered.
The taxation of image rights in South Africa : validity of tax minimisation schemes
(University of Pretoria, 2022) Kapp, Leandri; Meyer, Carolina
Sport undeniably plays a major role in society today. Over the years, it has developed into n free-standing industry and its players have become increasingly valuable and earn income both on and off the field. This article addresses the income generated by sport stars off the field of play through the exploitation of their ‘image rights’. The use of someone’s image rights can be explained as the practice of appropriating someone’s personality. In modern society, people have become transfixed by sport stars. This has led to the image rights of individual sport stars such as Lionel Messi and Cristiano Ronaldo to become commodities exploited by their clubs and other third parties to enhance brand images and promote the sale of products. 1 This use of the image rights of celebrities generates a whole new source of income for these sport stars. Due to the relatively high amounts of income received for the use of a sport star’s image, these stars may be tempted to enter into creative schemes in an attempt to reduce high taxes levied against these streams of income. The practice of the commercial exploitation of a sport star’s image rights is a relatively new development in South Africa and is not yet recognised to the same extent as in other jurisdictions, such as the UK and Spain. 2 This article examines the existing South African sport, intellectual property, and tax laws governing image rights and specifically analyses whether South Africa is sufficiently equipped, under tax legislation, to address these minimisation schemes aimed at reducing the tax liability arising from a South African sport star’s image rights.
Incorporating the incorporeal : the potential classification of Bitcoin as a ‘thing’ under South African common law
(University of Pretoria, 2023) Geyer, Brigitte
This article aims to determine whether Bitcoin could be classified as a ‘thing’ in the South African common law of things. The key motivation behind this article is to determine whether the Pandectist focus on the corporeality requirement in the classification of things is outdated in the modern, technologically driven era. Bitcoin, which is classified as a decentralised convertible virtual currency has been received positively in South Africa over the course of the last few years, as Bitcoin adoption has grown exponentially. South Africa has also seen the implementation of important regulatory reforms surrounding virtual currencies; primarily the recognition of virtual currency as a financial product and its traders as financial service providers. Given the positive reception of virtual currencies, particularly Bitcoin, in South Africa, this article explores the recognition of Bitcoin as a ‘thing’ in South Africa law, as well as the significance of this classification. From this evaluation, it will become clear that the incorporeal nature of Bitcoin poses a challenge to its common law recognition, albeit not an insurmountable one. In this regard, two arguments — the doctrinal argument and the exception argument — are proposed whereby Bitcoin could be recognised as a thing despite its incorporeality.
Reimagining a new world of South African insolvency law : advantage to creditors and Section 39(2) of the Constitution
(Juta Law Journals, 2023-12) Smith, Alastair
A recent judgment in an application for a final order of compulsory sequestration provided startling justification for granting the order even if the debtor’s estate has no assets that would provide a pecuniary benefit and prospect of a dividend for creditors by relying in part on s 39(2) of the Constitution of the Republic of South Africa, 1996 and extensive quotations from two Constitutional Court decisions on other topics. The connections between the scope, purport and objects mentioned in s 39(2) and the subject matter of the case were not stated by the court but left to the reader to imagine and construct. Possible lines of justification are ventured in this article. The judgment’s vision of radically reimagining the South African law of insolvency is based on misapplying s 12(1)(c) of the Insolvency Act 24 of 1936. In possible moves towards reforming South African insolvency law by abandoning the requirement of advantage to creditors in a new statute, it would be essential for the legislature to canvass detailed, well-informed, carefully considered research and guidance by experts on South African social, economic and financial policy in the current circumstances.
Company records and information - an open book
(LexisNexis, 2023-08) Swart, Willem Jacobus Christiaan; Lombard, M.
Die reg om inligting te bekom is, uit die aard van die saak, onontbeerlik tot die bevordering van 'n kultuur van deursigtigheid en verantwoordbaarheid. Die howe het in onlangse regspraak die geleentheid gehad om te beslis oor die reg op toegang tot die inligting en rekords van maatskappye. Dit is interessant om die verskillende benaderings van die onderskeie howe te ontleed betreffende, enersyds, die hoedanighede van die applikante en, andersyds, die aard van die inligting versoek. Onlangse beslissings dui onteenseglik op 'n beweging na transformerende konstitusionalisme en die beginsels van subsidiariteit, eerder as 'n rigiede toepassing van die bepalings van spesifieke wetgewing. In hierdie aantekening word die wetgewing wat die reg ten opsigte van toegang tot maatskappyrekords en -inligting reguleer in die lig van onlangse regspraak, asook die verskillende benaderings van die onderskeie howe, bespreek.
Intolerability of the employment relationship in the context of constructive dismissal : an analysis of recent judgments from South Africa, Namibia, Lesotho and Eswatini/Swaziland (Part 2)
(University of Fort Hare, Nelson R Mandela School of Law, 2023-12) Okpaluba, Chuks; Maloka, Tumo Charles
The first part of this article introduced the concept of constructive dismissal in the law of unfair dismissal in South Africa, with some illustrations from Namibia, and discussed mainly the test for constructive dismissal which deals with the employee’s burden of proving that his/her resignation was not voluntary but literally foisted upon them by the conduct of the employer, who should have gone further to prove that the dismissal was not unfair or did not constitute unfair labour practice. This second part begins with the discussion of the experience of Lesotho and Swaziland/ Eswatini and proceeds to discuss the three elements of constructive dismissal, by which the employee must have brought the employment relationship to an end by proving that continued employment was intolerable, a situation for which the employer was responsible. A number of other instances where constructive dismissal was claimed but the employee failed to convince the courts that it ever existed in the given cases are also outlined in this part.
Intolerability of the employment relationship in the context of constructive dismissal : an analysis of recent judgments from South Africa, Namibia, Lesotho and Eswatini/Swaziland (Part 1)
(University of Fort Hare, Nelson R Mandela School of Law, 2023-07) Okpaluba, Chuks; Maloka, Tumo Charles
A number of recent cases from the Labour Court, especially, HC Heat Exchangers (Pty) Ltd v Araujo (JR155/16) [2019] ZALCJHB 275; 2020 3 BLLR 280 (LC) has compelled a revisit of the constructive dismissal aspect of the law of unfair dismissal in contemporary South African labour law. Although constructive dismissal is not mentioned in the Labour Relations Act 66 of 1995, unlike “dismissal” and “automatically unfair dismissal”, its existence has been read by necessary implication into the definition of “dismissal” in its section 186(1)(e). From the case law, and the various issues surrounding it, there can be no doubt that constructive dismissal has come to stay in South Africa’s labour lexicon; it cannot simply be bypassed in the study of the law of unfair dismissal in modern times. In light of the two important aspects of his subject, namely, the two-stage test and the three elements of unfair dismissal both of which have accumulated enormous jurisprudence, a two-part series is adopted in this article. While the primary question of whether there was a dismissal and whether it was fair is dealt with in this first part, whereas, the three elements of whether the employee brought the employment relationship to an end; whether the conduct complained of by the employee judged objectively was intolerable; and whether it was the conduct of the employer that caused the employee’s resignation, will be discussed in Part 2. Instances where the employees’ claims of constructive dismissal were successful, will be discussed along with the remedies awarded. On the other hand, instances where the employee failed to scale the strong threshold of proving constructive dismissal, are equally discussed. Since the developments in South Africa and Namibia are dealt with in Part 1, the developments in Lesotho and Eswatini/Swaziland are examined in Part 2.
Limitations on the rights of migrant workers : is a compliant and consistent approach being followed?
(University of the Western Cape, 2023) Newaj, Kamalesh
Migration has become a global phenomenon and South Africa, like many other countries, is a recipient of migrant workers. Migrant workers can be classified under five categories: permanent residents, refugees, asylum seekers, temporary residents, and undocumented migrants. This article focuses on documented migrants and their right to engage in work. Integral to the right to work is the right to choose one's trade, occupation or profession freely. This is a constitutionally protected right, but is reserved exclusively for citizens, which implies that migrant workers can be lawfully excluded from working in certain occupations or professions. This ties in with South Africa's obligation to protect employment opportunities for citizens. However, South Africa has immigration laws in place that afford substantial rights to certain categories of migrants. Furthermore, as a member of the UN and International Labour Organisation (ILO), South Africa has certain international law obligations. Against this backdrop, this article engages with the recent Constitutional Court decision of Rafoneke v Minister of Justice and Correctional Services where temporary residents were denied the right to be admitted to practise and be authorised to be enrolled as legal practitioners. The article seeks to establish whether this decision, which has been viewed as disappointing, complies with international law and upholds the legal principles endorsed in preceding cases.

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