Research Articles (Private Law)

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The extra-judicial ejectment of land intruders : an evaluation of the relation between the possession and home concepts
(LexisNexis, 2025-02) Marais, Ernst; Muller, Gustav
Please read abstract in the article.
Interrogating the right to basic education of undocumented children in the context of the call for their exclusion from public schools in South Africa
(Nelson Mandela University, 2024-07-07) Mutu, Perekeme
The right to basic education is recognised as a fundamental human right that is guaranteed to everyone, including undocumented children under international and domestic law. However, the question needs to be asked whether this right extends to undocumented children living in South Africa when, at the start of every academic calendar, tales of children being denied enrolment in public schools owing to a lack of required identification or birth certificates dominate the media space. Apparent legal contradictions, a lack of proper understanding of extant laws protecting the right to basic education, and a lack of effective cooperation among stakeholders in the education section have continued to affect access to basic education for undocumented children in South Africa. This article reflects on the right to basic education of undocumented children in the context of the legality of the lingering call for the exclusion of undocumented children from public schools in South Africa.
Informed consent and access to gender-affirming treatment for children in South Africa
(Pretoria University Law Press, 2023) Ozah, Ronaldah Lerato Karabo
Informed consent for medical treatment is a developed legal concept in South African common law; the elements of which have been clearly set out by our courts. The overarching principle is viewed as a collaboration between medical practitioner and patient to understand the medical prognoses, medical advice and recommended treatment as well as the risk associated with such treatment. It should be done in such a way that the medical practitioner is not viewed as the “gatekeeper” of the medical treatment, but that the practitioner has confidence that they have provided the necessary information to enable the patient to decide. Where children are concerned, there is a greater duty to ensure informed consent for medical treatment is obtained in a manner that safeguards the short-term and long-term, best interests of the child, while also respecting the evolving capacities of the child. This paper examines the rights of children to consent to gender-affirming treatment and explores how this issue could be dealt with in an approach that recognises the autonomy of children while ensuring that their short-term and long-term best interests are upheld. The paper argues that the provisions of section 129 of the Children’s Act 38 of 2005 and the Gender Affirming Healthcare Guidelines provide sufficient guidance as to how informed consent for gender reaffirming treatment for children should be obtained in line with their evolving capacities.
Reconciling lobolo with the equality principle : the need to realign official customary law with living customary law of South Africa
(Pretoria University Law Press, 2023) Boterere, Shammah God'swill; Maimela, Charles
Much scrutiny has recently been directed towards African customary law mostly because of its traditionally patriarchal nature, which conflicts with the inalienable constitutional principle of equality. The landmark decision of Mabena v Letsoalo 1998 2 SA 1068 (T) comes to the fore wherein the High Court fostered constitutional values and championed living customary standards in respect of a lobolo dispute. This paper builds on this decision and undertakes desktop research on the potentially unfair discrimination of women in respect of the lobolo practice under official customary law. In this respect, gender validates lobolo under the Recognition of Customary Marriages Act 120 of 1998 (the Recognition Act) in that only the prospective husband or the head of his family has a duty to furnish lobolo while only the bride’s family head may receive the lobolo, at the exclusion of all others. In consideration of this, the paper sets out to evaluate whether the statutory gender requirement can survive constitutional scrutiny because it potentially marginalises women. The overarching aim of this paper is to analyse the obstacle that section 1 of the Recognition Act places on prospective brides by hindering them from furnishing lobolo to the family head of a prospective husband in consideration of a customary marriage. Furthermore, the paper also explores whether this prohibition aligns with the needs of contemporary society and whether the prohibition amounts to unfair discrimination. This being said the paper concludes that the Recognition Act’s lobolo gender requirement is unjustifiable and violates women’s human rights, and law reform is necessary to align official customary law with living customary law and constitutional values.
The expanding role of the curator ad litem in protecting children’s rights in South Africa
(Pretoria University Law Press, 2023) Hansungule-Nefale, Zita M.; Courtenay, Morgan
The appointment of the curator ad litem during litigation in which children’s interests are concerned has, over the years, played a critical role in advancing the child’s right to be heard and participate in matters affecting them for the advancement of their best interests. Prof Boezaart’s seminal article on the role of the curator ad litem and children’s access to the courts set out a comprehensive review of the origins, duties and role of the curator. Litigation and resultant court pronouncements subsequent to the article have continued to affirm the importance of the curator’s role in matters dealing with the care of children; delictual matters in which children have legitimate financial claims; and acquisition of parental rights and responsibilities of the unborn child. The courts have affirmed the fact that the curator must only be appointed when their presence is necessary and not duplicate the functions of attorneys representing parents or caregivers of the children or the parents or caregivers themselves. The curator represents and protects the interests of the children concerned, prevents conflict with the interests of the parents, guardian or caregiver or represents the child when such parent, guardian or caregiver is unwilling to act in the interests of the child. The courts have held that in highly contested matters, the curator must, as an officer of the court, keep an open mind, remain neutral, and be open to all arguments in the interests of the children concerned. They must not allow themselves to be distracted by contentious issues in litigation and must honour their obligation to provide insight into the wishes and views of children and to apply their legal knowledge to the child’s perspective. The curator has also played a critical role in protecting the interest of the unborn child by conducting an objective investigation and ensuring that their interests are fully before the court.
Child rights jurisprudence without borders : developments in extraterritorial jurisdiction
(Pretoria University Law Press, 2023) Skelton, Ann, 1961-
This article elaborates on the development of a global child rights jurisprudence emerging from the United Nations Committee on the Rights of the Child (the CRC Committee), drawing from other treaty bodies and supranational bodies. It also considers whether the CRC Committee is ‘pushing the boundaries’ of international law on extraterritorial jurisdiction in its recent decisions, one of which concerns the repatriation of the children of foreign fighters in the camps in North East Syria, and the other relates to transboundary harms caused by climate change. The article concludes that these two decisions show evidence of a jurisprudence that crosses the boundaries of different bodies and courts, and which has extended the concept of extraterritorial jurisdiction.
The role and effect of the constitution in customary law of succession
(Pretoria University Law Press, 2023) Mtsweni, Lindiwe; Maimela, Charles
Customary law is the original law of the inhabitants of South Africa; however, it has always been treated as the stepchild of the legal system. The new constitutional dispensation requires that all laws be measured against the Constitution of the Republic of South Africa, 1996. This means that any law that is inconsistent with the Constitution is regarded as being invalid. Over the last few years, courts have had several cases, which have required them to test the constitutionality of some customary law principles and develop customary law in a manner that aligns it with the Constitution. However, we have witnessed a reluctance to develop customary law from the courts, instead, the laws which could have been developed were declared invalid. The focus of this paper will be to interrogate the role and effect of the Constitution in the administration and application of customary law of succession. Furthermore, to justify why we hold the view that customary law is a stepchild of the South African legal system post the democratic dispensation, this is attributed to the fact that most cases that involve the customary law of succession still leave many women in dire social and financial situations where the head of the family dies due to the distorted prevailing principle of male primogeniture.
The Komape litigation – ensuring effective remedies
(Pretoria University Law Press, 2023) Veriava, Faranaaz; Harding, Mila
The three Komape cases were spurred by the death of Michael Komape in 2014, when he drowned in a dilapidated pit toilet at his school in Limpopo. In the first judgment, the High Court recognised that the government had violated a host of rights – including the right to basic education and the rights of the children to have their best interests considered as paramount in any matter concerning them. However, the court refused to grant common law damages. This refusal was successfully appealed in the Supreme Court of Appeal. In the first judgment, the High Court also granted a structural order requiring the government to eradicate all pit toilets in the province. The plaintiffs did not appeal this part of the order. Subsequently, the plaintiffs needed to return to court after the government did not adequately comply with the structural order. The High Court once again ruled that the government was violating the rights of children by not urgently eradicating pit toilets in schools. A more detailed structural order was granted, requiring the government to formulate a new plan on urgent timelines. However, the court refused to extend its supervisory role. This article argues that structural orders have proved to be valuable tools in litigation for the right to basic education in the Komape case in particular. Further, the article argues that the High Court may have not fully understood the role of court-appointed agents in not granting a task team to monitor the government, as requested by the plaintiffs. The granting of a task team would have been appropriate in the case – given the gravity of the sanitation crisis, learners’ right to basic education, and children’s right to have their best interests be considered paramount in all matters concerning them.
Realising a ‘right’ to research in Nigeria and South Africa : the role of the executive arm of government
(Juta Law Journals, 2023) Okorie, Chijioke
Development agendas and plans such as South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021–2025, indicate the need for, and benefits of, development research to sharpen countries’ innovative edge and to contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions allowing for the right to research. This can be in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of a right to research has been limited by a copyright legislative framework that may be challenging to interpret. Other hindrances to realising the right to research are limited access to courts for interpretation due to limited resources and also as a result of the inherent institutional limitations of courts to consider only the case pleaded by parties before them. In this environment, the role of the executive arm of government in driving the realisation of a right to research is crucial. Yet, there’s been no executive action to provide for the much-needed clarification to concretise and promote the right to research to actualise development goals. Focused on Nigeria and South Africa, this paper explores the duties imposed on the institutions of executive government and applies administrative law principles to indicate a policy toolkit within copyright statutes that may be deployed to realise a right to research and engender guidance for researchers, copyright owners, users and audience of research.
Cherishing customary law : the disparity between legislative and judicial interpretation of customary marriages in South Africa
(Nelson Mandela University, 2024-07-07) Maimela, Charles; Morudu, Ntebo Lauretta
The constitutional recognition of customary law in South Africa has opened a new conduit for the development of customary law. With the courts taking the lead in addressing customary law disputes, the interpretation of customary law has come with setbacks. This article argues that the development and reform strides made by the judicial and legislative institutions appear of modest benefit to the people they strive to protect, advance and regulate, especially during interpretation and reform. The article seeks to confront the judicial interpretation of customary law based on the recent High Court case of Sengadi v Tsambo. The court had to consider an application for four types of relief. The court deviated from the factual nature of customary law in relation to a spouse’s burial rights when it concluded that a valid customary marriage and all the validity requirements outlined under the Recognition of Customary Marriages Act had been met. Indicating the factuality of customary law when it relates to marriage and its link to burial rights, “that a male descendant of the household belongs to his paternal family, his place and existence being one with his paternal roots. His right to belong to his paternal family is absolute and customary.” The above ignored, yet crucial cultural practice informs the interpretation of customary law under the constitutional guise. The Constitution affirms the right to practise and observe one’s culture. In Sengadi v Tsambo, to determine the burial rights of a spouse, the court employed a narrow and strict interpretation instead of interpreting the cultural practice of bridal integration against a holistic customary background. The article advocates for courts to adopt purposive interpretational approaches in reforming customary law. It emphasises for the consideration of the interpretational rules and theoretical frameworks proposed by legal scholars to reflect the factual nature of customary law. As the positivist approach to customary law undermines the pluralistic nature of the South African legal system. The article pioneers for the recognition of living customary law as holistic, and an integral normative system of indigenous people of South Africa, while taking into account the history and context of this legal system.
'Consent’ and confusion casting doubt on the validity of a customary marriage : Mgenge v Mokoena & another [2023] JOL 58107 (GJ)
(University of Pretoria, 2023) Hager, Liesl
In Mgenge v Mokoena & another [2023] JOL58107 (GJ), the Gauteng High Court, Johannesburg, per Rome AJ, considered the validity of a customary marriage concluded between the bride (the first respondent)and the deceased groom with reference to the requirements outlined in section 3 of the Recognition of Customary Marriages Act 120 of 1998. The mother of the groom (the applicant) challenged the validity of the marriage certificate. The main issue under inspection is whether the applicant’s lack of participation in, consent to, or knowledge of the customary marriage is sufficient to rebut the prima facie proof of validity offered by the marriage certificate. In this contribution, I recount the Court’s systemic approach to determine if the applicant’s misunderstanding of the purpose or intention of the events that transpired and her absence in participating in the negotiations and entering into or celebration of the customary marriage invalidates the prima facie proof offered by the marriage certificate. I explore the Court’s approach to the requirements for a valid customary marriage, specifically the negotiation and celebration requirements, as well as the integration and physical handing over of the bride. I also briefly inspect the role of expert evidence and living customary law. This judgment demonstrates the dynamic and evolving nature of living customary law in South Africa and the approaches adopted by the judiciary when exploring customary law issues like the validity of a customary marriage.
The right to food in South Africa : a consumer protection perspective
(Pretoria University Law Press, 2024) Muwanga, Tracy Sheila Namirembe; Korsten, Lise; tracy.muwanga@up.ac.za
The right to food is a recognised human right, particularly within socio-economic rights. In South Africa, this right is still evolving but has become increasingly significant as global hunger worsens. Importantly, the right to food means not the right to be given food, but the right to access safe, nutritious and affordable food, which is crucial for health and development. Malnutrition, especially in low and middleincome countries, affects both children and adults. It includes various forms of undernutrition and micronutrient deficiencies that impair the body’s ability to grow and function properly. There are also challenges related to obesity and diet-related non-communicable diseases, which have become major public health concerns. NCDs such as heart disease and cancer often stem from poor diets and lifestyle choices. In South Africa, unhealthy eating habits – such as the consumption of foods high in sugar, salt and unhealthy fats – have contributed to the rise in these conditions, especially in lower-income communities where healthier food is less accessible for different vulnerable groups. South Africa’s health system is burdened by a combination of communicable and noncommunicable diseases, making the need for preventative measures more urgent. Regulatory interventions are crucial to managing this health crisis. This article emphasises the need for stronger legislation, particularly around food labelling and advertising, to protect consumers. The article analyses the right to food and food insecurity from a national and global perspective, as well as conducting a review of case law surrounding food rights. The article will further discuss South Africa’s food law and regulatory interventions to combat NCDs, focusing on consumer protection through labelling and advertising regulations, particularly the proposed new regulations, which are yet to be passed, on labelling and advertising of foodstuffs.
The extra-judicial ejectment of land intruders : an evaluation of counter spoliation and the role of possession (Part 1)
(LexisNexis, 2024-10) Marais, Ernst; Muller, Gustav
Die verweer van contra-spolie het gewoonlik min akademiese aandag geniet en was selfs as ŉ onkontroversiële deel van die privaatreg geag. Al hoe meer privaat- en staatseienaars van grond het egter onlangs begin om hierdie verweer, wat ŉ persoon toelaat om buitegeregtelike self-help te gebruik om sy besit van ŉ saak te beskerm, in te span om onregmatige besetters van hulle grond te verwyder. Hulle redeneer hierdie besetters is nog nie onregmatige okkupeerders onder die Wet op Voorkoming van Onwettige Uitsetting en Onregmatige Besetting van Grond 19 van 1998 nie, en daarom benodig hulle nie ŉ hofbevel om hulle af te sit nie. Die besetters, daarenteen, beweer hulle mag net ingevolge ŉ hofbevel uit hulle wonings op die grond gesit word. Hierdie dispute opper verskeie vrae – die verweer se vereistes, die rol van die besitkonsep, die verhouding tussen besit in die privaatreg en “onregmatige okkupeerder”-vereistes onder die Wet, en of die “woning”-konsep in artikel 26(3) van die Grondwet miskien die drempelvereiste behoort te wees vir grondbetreders om beskerming onder die Wet te geniet. Ons ontleed hierdie vrae, in ŉ reeks van twee artikels, vanuit ŉ sistemiese perspektief – Van der Walt se grondwetlike visie van eiendom. Ons evaluasie toon dat besit dieselfde betekenis as onregmatige okkupeerder het. Dit wys ook dat sekere howe Van Leeuwen se wye benadering tot die instanter benadering volg, en dat hulle ook irrelevante oorwegings in ag neem, veral wanneer die eienaar hom op contraspolie beroep. ŉ Sterker klem op die besitkonsep slaag daarin om hierdie inkonsekwenthede die hoof te bied. Dit wil nietemin voorkom of besetters eers beskerming onder die Wet sal geniet selfs nadat hulle reeds wonings op die grond gevestig het. Dit is daarom beter om die woningkonsep in artikel 26(3) as drempelvereiste te gebruik, aangesien hierdie konsep wyer is as die “onregmatige okkupeerder”-vereiste. Weens die geweldige lyding waarmee vele uitsettings gedurende apartheid gepaard gegaan het, is dit beter indien die uitsetting van alle betreders, wat reeds wonings op grond het, aan geregtelike oorsig onderwerp word.
South African dagga : piping on the related intellectual property rights and indigenous knowledge systems
(Inderscience, 2024-09) Oriakhogba, Desmond O.; Okorie, Chijioke; Lavhengwa, Livhuwani Sosanah; chijioke.okorie@up.ac.za
The use of dagga has been partially legalised and decriminalised in South Africa and there is increasing awareness with regards to its importance to national development. Thus, a dagga industry is emerging in South Africa. Intellectual property rights (IPR), and indigenous knowledge systems (IKS) are potential means for harnessing the economic benefits of dagga and developing the emerging dagga industry. Currently, there exists a scarcity of South African literature on the significance of IPR and IKS to the emerging dagga industry in South Africa. However, existing foreign literature on the subject demonstrate the intricate, varied and heterogeneous implications of IPR and IKS on the use, cultivation, and growth of dagga for national economic development. Based on desk research, this paper determines the legal and policy strategies for the protection of IPR and IKS stakeholders and indigenous communities within the emerging dagga industry in South Africa. It examines the current legal and policy reforms surrounding the partial legalisation and decriminalisation of dagga in South Africa, the ensuing IPR and IKS issues and the various strategies applicable for harnessing their economic benefits.
Image rights in Kenya
(Juta Law Journals, 2023) Thutse, Legodi; Cornelius, Steve J.
Kenia is ’n land wat al op verskeie terreine vele bekendes opgelewer het. Hulle is veral welbekend vir die wêreldklas middel en langafstandatlete wat hulle oplewer. Dit sou daarom nie vreemd wees nie, indien bemarkers sou poog om die gelykenisse van bekende persone te gebruik in hulle bemarkingsveldtogte. Dit sou egter nie ’n Olimpiese atleet of ander beroemde persoon wees wat sou poog om die reg op identiteit in hierdie verband te beskerm nie. Inteendeel, dit sou ’n nederige motorfietsafleweringsbestuurder wees wat ’n finansiële instelling tot orde sou roep omdat hulle sonder toestemming sy foto in hulle bemarkingsmateriaal gebruik het. Alhoewel die Keniaanse deliktereg gegrond is op die Engelse law of torts, vermy die hof in die Rafiki saak die enge benadering van die Engelse howe, waarvolgens die ongemagtigde gebruik van iemand se beeld vir bemarking slegs ’n eisoorsaak daarstel indien dit sou neerkom op aanklamping. Die Keniaanse hof wend hom veel eerder tot die SuidAfrikaanse reg en steun vir gesag op die uitsprake van die SuidAfrikaanse howe in Grütter v Lombard (2007 (4) SA 89 (HHA)) en W v Atoll Media (Pty) Ltd (2010 4 All SA 548 (WKK)). Die hof in die Rafikisaak beslis dat die ongemagtigde gebruik van sy foto ’n skending is van sy reg op privaatheid, soos vervat in artikel 31 van die Grondwet van die Republiek van Kenia. Voorts bevind die hof, met verwysing na die uitspraak van die SuidAfrikaanse konstitusionele hof in MM v MN (2013 (4) SA 415 (KH)), dat die ongemagtigde gebruik van sy foto ook ’n skending is van sy reg op menswaardigheid soos vervat in artikel 28 van die Keniaanse grondwet. Op hierdie wyse ontwikkel howe in Afrikalande pragmatiese oplossings wat die individu teen uitbuiting beskerm. Die beginsels wat aldus neergelê word, vergelyk goed met die omvattende beskerming wat in verskeie Amerikaanse deelstate teen ongemagtigde gebruik van iemand se beeld in bemarkingsmateriaal verleen word.
The Basic Education Laws Amendment Bill : a case study in transformative constitutionalism beyond the courts
(Pretoria University Law Press, 2024) Veriava, Faranaaz; faranaaz.veriava@up.ac.za
The Basic Education Laws Amendment Bill (BELA Bill) is one of the most significant reforms to the South African basic education legal framework since 1994. While the amendments impact on a wide range of issues, this article focuses specifically on the BELA Bill’s amendments to the policy-making functions of the localised structures in education governance, known as school governing bodies (SGBs), in particular, changes to the unchecked autonomy the SGBs in making language and admission policies for schools. The article notes that the model of education decentralisation that was adopted in post-1994 democratic South African has been highly contested. This manifested during the country’s 1994 negotiated transition, continued in the school governance litigation and in the BELA Bill public participation processes. The article argues that the jurisprudence emanating from school governance litigation acknowledges the history of racism and apartheid spatial injustice that has had the effect of limiting access to well-resourced schools for black people in South Africa. The South African Constitutional Court, therefore, placed a duty on SGBs when formulating policies to be cognisant of the broader systemic concerns in education impacting on the access rights of learners. The jurisprudence has now been codified into law in the school governance reforms in the BELA Bill. The article illustrates how the formulation of school governance principles, and their ultimate inclusion in the BELA Bill, exists as a case study in transformative constitutionalism beyond the courts. This is due to a range of contributing factors, such as the interventions of progressive amici in these cases; a degree of judicial activism displayed by the Constitutional Court in the school governance litigation; the proactive codification by the state of the jurisprudential principles; and the progressive support for the inclusion of the school governance amendments in the BELA Bill during the public participation processes.
Strategic litigation for educational equity : analysing the impact of ISER v Attorney-General on access to quality education in Uganda
(Pretoria University Law Press, 2024) Mutu, Perekeme; perekeme.mutu@up.ac.za
In recent years, strategic litigation has emerged as a powerful tool for advancing human rights and promoting social justice around the world. This legal approach involves the deliberate use of legal action to bring about broader social or systemic change. In the context of Uganda, where access to quality education has been a concern, the impact of strategic litigation in advancing access to education cannot be understated. This article delves into the effectiveness of strategic litigation in promoting access to equal quality education in Uganda, with a specific focus on the 2019 landmark High Court decision in the case of Initiative for Social and Economic Rights v Attorney-General.
Realising the right to basic education through strategic litigation in Kenya
(Pretoria University Law Press, 2024) Skelton, Ann, 1961-; Mutu, Perekeme; ann.skelton@up.ac.za
In pursuit of creating an inclusive and equitable society, the right to basic education stands as a cornerstone, serving as a catalyst for individual empowerment and social progress. It is not surprising that in Kenya’s Vision 2030, education stands as one of the pillars to actualise the objectives set out in that document. The constitutional framework of Kenya recognises education as a fundamental human right, which is the basis for the development of a knowledgeable and skilled citizenry. This article examines the crucial role that strategic litigation can play in actualising the right to basic education in Kenya, exploring the constitutional provisions that underpin this legal strategy and emphasising the pivotal role of the judiciary. The article argues that the Kenyan Constitution and the entire legal framework provide a solid legal background for civil society organisations and other interested parties to deploy strategic litigation to pressure the government for the realisation of the right to basic education in the country. However, the success of such efforts is largely dependent on how the judiciary understands its crucial role in driving the transformative potential of the Constitution.
Editorial : Special focus on promoting access to basic education through the law in sub-Saharan Africa
(Juta Law, 2024) Skelton, Ann, 1961-; Veriava, Faranaaz; Mutu, Perekeme
No abstract available.
Report on enforcing the rights of children in migration
(MDPI, 2023-10-19) Binford, Warren; Bochenek, Michael Garcia; Cernadas, Pablo Ceriani; Day, Emma; Field, Sarah; Hamilton, Marci; Liefaard, Ton; Mezmur, Benyam; Mulatu, Fasil; Skelton, Ann, 1961-; Sloth-Nielsen, Julia; Stuart, Joao; Van Loon, Hans; Verhellen, Jinske
The ILA Study Group began its work by identifying guiding principles that should frame and inform state practices with respect to children in migration. These principles included, but were not limited to, non-discrimination; the best interests of the child; the right to life, survival, and development; the right of the child to express their views on all matters affecting them; and the right to an effective remedy. The Study Group identified some of the most common rights violations for children in migration such as arbitrary age assessment practices; inadequate and age-inappropriate reception policies and facilities; and immigration detention of children and other coercive practices. The Study Group undertook a multidisciplinary approach by summarizing the research documenting the harmful effects of these practices on child health and well-being. It surveyed (1) treaties and international instruments that might recognize a right or remedy for children on the move; (2) regional and international fora where the claims of children could be heard; and (3) the growing body of regional and international jurisprudence upholding the rights of children in migration. Finally, it identified gaps in the international and regional frameworks and formulated recommendations as to how to ensure children in migration are able to enforce their rights and access justice.

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