Research Articles (Procedural Law)

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Plea in terms of Section 106(1)(h) of the Criminal Procedure Act 51 of 1977 : S v Moussa [2021] 3 All Sa (GJ)
(LexisNexis, 2023) De Villiers, Wium P.
Die beskuldigde het ingevolge artikel 106(1)(h) van die Strafproseswet 51 van 1977 gepleit dat die aanklaer nie titel het om te vervolg nie. In die saak het 'n vorige aanklaer sonder magtiging 'n pleitooreenkoms met die beskuldigde aangegaan. Die beskuldigde het ingevolge die ooreenkoms aan die klaer betalings gemaak onder die indruk dat die klagtes by betaling teruggetrek sou word. Die Adjunk-Direkteur van Openbare Vervolging ("ADOV") het nie die ooreenkoms teruggetrek of die afdwinging van die ooreenkoms voorkom nie, en het voortgegaan met die vervolging. Die beskuldigde het aangevoer dat die Staat as 'n invorderingsagent opgetree het en dat dit 'n misbruik van proses was. Die hof het bevind dat die term "aanklaer" in artikel 106(1)(h) nie vir 'n beswaar teen die ADOV voorsiening maak nie, maar wel teen die vorige aanklaer. Die hof bevind verder dat dit nie 'n misbruik van proses was nie. Dit word aangevoer dat die term "aanklaer" in artikel 106(1)(h) net die aanklaer voor die hof, en nie 'n vorige aanklaer, die ADOV, die vervolgingsgesag of die Staat insluit nie. Dit word verder aangevoer dat, al sou die term "aanklaer" 'n vorige aanklaer insluit, die gedrag van die vorige aanklaer nie 'n misbruik van proses was nie. Dit word laastens voorgehou dat die beskuldigde op die ooreenkoms moes gesteun het en aansoek moes gedoen het vir 'n permanente verbod teen verdere vervolging, in plaas daarvan om op artikel 106(1)(h) te steun.
The role of expert evidence in civil litigation : a critical analysis (Part 1)
(University of the Free State, 2023-06) Bekker, Thino
Section 34 of the Constitution of the Republic of South Africa provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. A number of foundational principles that underlie the South African law of civil procedure had been afforded express recognition by this section. One of these principles entail that the duration and costs of civil litigation should be reasonable. In the past decade, or so, there have been several initiatives to give effect to this ideal of civil justice for all. Despite this, there are still several impediments in the South African law that causes civil trials too be exorbitant and time-consuming. One of these impediments relate to the presentation of expert evidence testimony. Part one of this article will critically discuss the historical development of Uniform Court Rule 36(9), its recent amendments and the critique raised against the procedure. In part two the position in relation to the presentation of expert witness evidence in England and Wales, and Australia, as well as its possible contribution to the South African law will be discussed. It will be argued that the current procedure relating to the presentation of expert evidence in South Africa still has certain shortcomings and that the Rules Board will have to intervene to ensure that the procedure enhances access to justice in civil matters.
Rescission of judgments by consent – recent developments and lessons from England and Wales
(University of Fort Hare, Nelson R Mandela School of Law, 2023-07) Bekker, Thino
This article contains a critical discussion of the recent developments relating to the rescission of judgments by consent in both the High and magistrates’ courts, the amended periods relating to the retention and removal of adverse information from credit bureaus, and the impact thereof on the South African credit consumer market. The position in relation to the setting aside of judgments in England and Wales is discussed and it is argued that some of these provisions should be incorporated in the South African law. The author concludes that the current, as well as proposed application of the rescission of judgments by consent still has certain shortcomings and that the legislature will have to intervene to ensure a uniform and fair application of the procedure in relation to both credit providers and credit consumers.
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.
Legality of professional mixed martial arts in South Africa
(Nelson Mandela University, 2024-12-31) Ramsden, Gerald Andrew; Cloete, Rian
Senator John McCain may have been on point when he described mixed martial arts (MMA) as “human cock-fighting” in its formative years in the early 1990s in the United States of America (US). Those early MMA contests were no-holds-barred brutal affairs, fought between bloodied combatants of all shapes, sizes and combat styles, in a metal cage. Like bare-knuckle prize-fighting during the 18th and 19th centuries, this new form of combat sport closely resembled a glorified street fight. The sheer brutality of these spectacles ultimately led to the banning of MMA across the US. Realising that MMA’s future depended on governmental sanction and regulation, its organisers actively sought out such sanction and regulation. Although MMA is now legal in all US states, its regulation in both the United Kingdom (UK) and South Africa has lagged behind, raising uncertainty about its legality in these jurisdictions. This uncertainty has been exacerbated by the absence of legislative intervention and judicial scrutiny regarding MMA in both the UK and South Africa. There is, furthermore, a dearth of academic literature addressing this legal lacuna. This study endeavours to bridge that gap by examining the legality of MMA in South Africa. In so doing, guidance is sought from the manner in which the English courts have approached boxing and other activities that entail consensual bodily harm, such as sadomasochism.
Under the influence : the Kusile tender and state capture permeating the national prosecuting authority
(Emerald, 2025-01) Curlewis, Llewelyn Gray; Carter, Katelyn-Mae
PURPOSE : The purpose of this paper is to give light to the present order of state capture and corruption within South Africa at present. South Africans often consider the National Prosecuting Authority to be an independent body which is free of the corruption of the rest of the Government; however, the situation that surrounds the Kusile Tender will suggest otherwise. DESIGN/METHODOLOGY/APPROACH : This paper’s approach is purely qualitative using journal articles, textbooks, reports, periodicals, speeches and legislation as its basis. It is through a consolidation of this literature that this paper was formed. FINDINGS : This paper determines that even the National Prosecuting Authority of South Africa is not free from the scourge that is corruption through the depiction of the Kusile Tender. Within this tender, the National Prosecuting Authority entered into a non-prosecution agreement with a defendant, Asea Brown Boveri, which cannot be accounted for in the Criminal Procedure Act 51 of 1977. ORIGINALITY/VALUE : The concept of state capture and corruption are not new to any jurisdiction, let alone South Africa. This paper, however, intends to give insight into how even the departments which the public believe to be (and are constitutionally mandated to be) independent can fall prey to corrupt dealings.
Can the death penalty still be considered a “cruel, inhumane and degrading punishment” in the face of South African prison conditions?
(Nelson Mandela Metropolitan University, Faculty of Law, 2024-06-01) Curlewis, Llewelyn Gray; Carter, Katelyn-Mae
The use of the death penalty as a form of punishment can be traced back to the earliest human civilisations. South Africa was no stranger to this punishment, and it was only abolished here in 1995. South Africa accepted this form of punishment through its colonisation by the English. The union of South Africa made use of hangings throughout the 1900s; an average of 4 000 executions were implemented over an 80-year period (Cronje (ed) “Capital punishment in South Africa : was abolition the right decision? Is There a case for South Africa to reintroduce the death penalty?” South African Institute for Race Relations 2016. In 1989, President FW de Klerk placed a moratorium on the physical implementation of executions during the negotiations of the convention for a Democratic South Africa (Cronje South African Institute for Race Relations. The constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) was adopted during these negotiations; while it contained a comprehensive bill of rights, it did not address the use of capital punishment. The fate of the death penalty was left to the courts to address in 1995 in the landmark case of S v Makwanyane and Mchunu ((1995) 6 BCLR 665). Chaskalson J stated that section 277(1)(a) of the Criminal Procedure Act (51 of 1977) was unconstitutional with reference to the following rights: section 9 (life); section 10 (dignity) and section 8(1) (equality before the law). He stated that the reasoning for this decision was that the imposition of the death penalty amounted to a cruel, inhumane or degrading punishment inconsistent with the right to life and human dignity. Moreover, this punishment cannot be reversed in the case of error or enforced in a manner that is not arbitrary. However, in the 28 years since this decision was made, South Africa has experienced an escalation in violent and sexual crimes, including murder, robbery with aggravating circumstances, rape and kidnapping. With this in mind, South Africans are left to question whether our courts should be implementing more serious sentences for these crimes and whether the decision made by Chaskalson J was correct.
International commercial mediation : international recognition and enforcement of mediation agreements
(Nelson Mandela Metropolitan University, Faculty of Law, 2024-06-01) Curlewis, Llewelyn Gray; Raubenheimer, Ettian
Global economic output has increased dramatically due to an increase in cross border trade, the rise of multinational corporations and globalisation. The globalisation of trade resulted in an increasing interaction between different cultures and legal traditions with different value systems and philosophical foundations, leading to increased dispute potential which could eventually develop into conflict. The default setting for conflict resolution is widely recognised as judicially sanctioned dispute resolution, otherwise referred to as litigation. Commercial litigation processes are, however, getting more costly and burdensome. Commercial disputes are furthermore becoming more complex because of the globalised trade landscape and increasing cross-border mobility. This poses unique challenges for litigants and courts. Typical problems encountered include governing law issues, enforcement issues, differing national administrative requirements and legal processes. Dispute resolution by means of litigation is subject to intrinsic characteristics exacerbating the complexity of cross-border disputes. In the EU member states for instance, it takes between one hundred and three hundred days to obtain a first- instance judgment in civil proceedings.
An evaluation of alternative dispute resolution mechanisms in the African region
(Nelson Mandela Metropolitan University, Faculty of Law, 2024-06-01) Baboolal-Frank, Rashri; Naude, Louis
Alternative dispute resolution (ADR) in Africa is growing and flourishing but the region is not a global leader in conflict resolution. The African region still has many challenges to overcome. The region has the potential to expand, grow and thrive with foreign direct investment to boost its economies and ensure stability for its infrastructure. The African region is rich in many natural resources, but, unfortunately, interstate conflict causes instability to social, political and economic rights. This article explores the weaknesses and challenges within the African region with a view to activating the potential of the region to become a global leader in alternative dispute resolution. The enforcement and implementation mechanisms of alternative dispute resolution require an evaluation of current systems to ensure that there is an animate thrust of dispute resolution. The African systems have their strengths, but an evaluation of any system always exposes weaknesses. Corruption within the African region is a common theme, since government does not play an active role in deterring corruption, and this causes the public to mistrust all initiatives that stem from government influence. The article discusses the situation in four African countries, showing that corruption, lack of education and a lack of skilled ADR practitioners cause a dysfunctional system that cannot embrace ADR. For an ADR system to function smoothly, numerous ADR practitioners are needed to resolve conflict competently. Furthermore, a selective system of favouring laws that support only the government as opposed to investors causes an imbalance, and discourages investors from investing in Africa. A way needs to be paved, not to negate international practices relating to investor disputes, but rather to work holistically with national laws, to harmonise laws and overcome any conflict of law within the region.
The doctrine of proportionality : a proposed solution to human rights infringements in sports adjudication
(Pretoria University Law Press, 2024) Van der Merwe, Bianca; Cloete, Rian
The primary aim of this study is to emphasise the importance of applying consistent standards in the adjudication of human rights matters, particularly in the context of sports disputes. This study will investigate the judgments handed down by various courts in matters pertaining to the eligibility of female athletes with Difference of Sex Development to compete in elite competition and the impact thereof on international human rights. Conclusions are drawn regarding the need for a standard approach when considering the legality of limiting human rights in arguing that all courts should apply the same standards required by Human Rights courts when adjudicating human rights issues, even within the realm of sports disputes. The Doctrine of Proportionality is proposed as an appropriate standard to ensure that limitations of fundamental rights are just and reasonable.
Exploring the need for numeracy skills in legal practice
(Taylor and Francis, 2023) Wannenburg, Elizma; Curlewis, Llewelyn Gray
Legal practices are perceived as an epitome of the battle between good and evil. However, a different battle over the preparedness of the next-generation lawyers is now trending amongst law practitioners. Analytical ability, attention to detail and logical reasoning were perceived as sufficient skillsets for legal practitioners. However, are these skillsets adequate when conducting a substantive legal analysis that might require some form of numeracy? To answer this question, two focus-group discussions were held with various legal practitioners, in order to explore the need for numeracy skills in legal practice. The findings revealed that numeracy skills are deemed highly important, since the majority of legal practices require numeracy at some or other stage. In view of the findings, it is recommended that curriculum practitioners start with the review process of these qualifications, in order to prepare industry-ready graduates that are equipped to deal with numeracy in a confident and knowledgeable manner.
"Pay back the money” – a paper on criminal and civil asset forfeiture within South Africa and suggestions for reform
(Emerald, 2024-06) Curlewis, Llewelyn Gray
PURPOSE : The purpose of this paper is to bring to light the present civil and criminal asset forfeiture procedures within the South African context and to make suggestions for reform thereof. While there exists and is a need for constant change and reform of the law to ensure that it remains transparent, up-to-date and applicable to all means through which economic crime can be committed, South Africa lacks the necessary resources and attitudes to accomplish this essential goal. DESIGN/METHODOLOGY/APPROACH : The approach used in this paper is purely qualitative using journal articles, textbooks, reports, periodicals, speeches and legislation as its basis. It is through a consolidation of this literature that this paper was formed. FINDINGS : While South Africa’s present system of asset forfeiture is producing some impressive results, the process still has vast room for improvement. There are key areas which this paper outlines for reform. However, the probability of improvement is relatively low owing to the levels of corruption, illicit activities and attitudes of mistrust within the South African society at large. ORIGINALITY/VALUE : The concept of asset forfeiture is not new to any international jurisdiction, let alone South Africa itself. However, this paper aims to give insight into the specific South African experience of this procedure and how it can possibly be improved within the specific context.
The apportionment of legal costs in South Africa : a comparative analysis
(Juta Law Journals, 2022) Bekker, Thino
Een van die grootste hindernisse wat toegang tot die reg in siviele sake, soos gewaarborg in artikel 34 van die Suid-Afrikaanse grondwet, belemmer, is die toekenning van astronomiese regskoste aan die einde van 'n regsgeding. Daar is twee fundamentele reëls wat van toepassing is wanneer 'n hof 'n kostebevel toestaan aan die einde van regsverrigtinge in Suid-Afrika. Die eerste basiese reël bepaal dat die toekenning van regskoste in die diskresie van die hof is. Die tweede algemene reël bepaal dat koste die uitkoms volg, met ander woorde, koste word toegeken aan die suksesvolle party (die sogenaamde Engelse model). Daar kan slegs van hierdie algemene reël afgewyk word waar daar goeie gronde of spesiale omstandighede teenwoordig is wat die toekenning van 'n alternatiewe kostebevel regverdig. Hierdie wye diskresie gee egter aanleiding tot sekere problematiese aspekte in gevalle waar beide partye 'n sekere mate van sukses behaal. In hierdie artikel word die reël dat koste in die algemeen die uitkoms volg in die afwesigheid van spesiale omstandighede, krities bespreek. Daar word aangevoer dat, alhoewel die toekenning van koste in die algehele diskresie van die voorsittende beampte is, die algemene reël dat koste die uitkoms volg, in die meeste gevalle slaafs nagevolg word, selfs waar daar 'n werklike dispuut tussen die partye bestaan. Daar word aangetoon dat daar verskillende benaderings deur ons howe gevolg word by die toekenning van kostebevele wat regsonsekerheid tot gevolg het en wat dit moeilik maak vir 'n party om te besluit of dit die moeite werd is om regsverrigtinge in te stel of te verdedig. Daar word derhalwe aanbeveel dat die algemene reël behou moet word, maar dat die howe se diskresie vernou moet word en dat sekere voorafbepaalde faktore in aanmerking geneem moet word by die toekenning van 'n kostebevel, wat billik is teenoor al die partye. Die algemene reël behoort ook gewysig te word om voorsiening te maak vir die verdeling van regskoste waar beide partye 'n mate van sukses behaal het tydens die verhoor. Die regsposisie in België, Duitsland, Nederland en Engeland en Wallis word krities bespreek en daar word aanbeveel dat sekere bepalings van hierdie buitelandse regstelsels met vrug in Suid-Afrika geïmplementeer kan word.
Should magistrates take down confessions?
(Nelson Mandela Metropolitan University, Faculty of Law, 2022) Curlewis, Llewelyn Gray; Gravett, W.H. (Willem)
Section 217(1) of the Criminal Procedure Act 51 of 1977 (the Act) sets forth the requirements for the admissibility of a confession made by any person in relation to the commission of an offence. Section 217(1)(a) provides that where a confession is made to a peace officer who is not a magistrate or a justice of the peace, such a confession must be confirmed or reduced to writing in the presence of a magistrate. Pursuant to section 217(1)(b), where a confession has been made to a magistrate or has been confirmed and reduced to writing in the presence of a magistrate, it is deemed to be admissible in evidence upon mere production (ss (b)(i)); and presumed, unless the contrary is proved, that the accused made the confession freely and voluntarily, while she or he was in her or his sound and sober senses, and without having been unduly influenced in making it (ss (b)(ii)).
A review of judicial enforcement of arbitral awards in South Africa
(Wiley, 2022) Baboolal-Frank, Rashri; rashri.baboolal@up.ac.za
This article postulates the constitutional ethos of upholding contracts entered between parties on the principle of good faith in practice. This is aligned to the international principle of respecting party autonomy between parties in court. A party cannot easily negate upon a contract that stipulates that a dispute must be referred to arbitration and furthermore that the arbitration award is binding upon the parties and not subject to appeal. This article aims to discuss that there is judicial enforcement of arbitral awards in South African courts. There is no distinction between national and international enforcement of arbitral awards. The principle of party autonomy is the cornerstone of the enforcement of arbitral awards. From a South Africa perspective, both national and international legislation supports the recognition and enforcement of arbitral awards. This article elucidates the intricacies of the enforcement of arbitral awards and the protection of party's interests to the proceedings. This article explores the consequences of the antithetical approach to arbitration agreements and proceedings. The judiciary's practice is to uphold the contractual principle of consensus between the parties, as opposed to allowing parties to walk away from awards on frivolous reasons and renegading upon contractual terms.
Digital neocolonialism : the Chinese surveillance state in Africa
(Edinburgh University Press, 2022-02) Gravett, W.H. (Willem); willem.gravett@up.ac.za
China has developed into a twenty-first-century surveillance state with unprecedented abilities to censor speech and infringe upon basic human rights. The effects of China's digital authoritarianism reach well beyond its national borders. The Chinese government has begun exporting its high-tech surveillance blueprint, and the censorship and surveillance technologies on which it is based, to authoritarian-leaning governments in Africa. This blueprint is suffused with the potential for developing surveillance societies in China's image, particularly in African countries with poor human rights records, where democratic institutions are either weak or still in their infancy. This may yield even greater repression, rather than liberalisation, in Africa. The consequences for human rights on the African continent are likely to be dire.
Negotiating the intellectual property protocol under the agreement establishing the African continental free trade area : priorities and opportunities for Nigeria
(De Gruyter, 2022-02) Adewopo, Adebambo; Oriakhogba, Desmond; Okorie, Chijioke
EarlyMarch 2021, following its ratification of the Agreement Establishing the African Continental Free Trade Area (AfCFTA agreement), Nigeria’s National Office of Trade launched a consultative process into issues constituting the country’s priorities as it prepares to participate in the negotiation of the AfCFTA agreement’s protocol on intellectual property rights (IPRs). We contributed a position paper to that process, with a focus on key policy considerations that should form Nigeria’s negotiation priorities on IPRs. This article describes some of the most important points of our submission and concludes by stressing that the broad policy focus should be to champion initiatives that promote Nigeria’s national interest and, at the same time, recognize and accommodate the ideals of inclusiveness, openness, and collaboration within the context of the AfCFTA. In this regard, the paper recommends that Nigeria should prioritize negotiations in recognition of her strongest economic assets in copyright-related sectors and focus on institutional capacity-building for its patent and technology transfer offices so that Nigeria can effectively take advantage of the relevant Trade-Related Aspects of Intellectual Property Rights flexibilities locally. Nigeria can learn from South Africa in domesticating the appropriate legal framework for benefit sharing and the general protection of traditional knowledge and genetic resources. The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore 2010, the Arusha Protocol for the Protection of New Varieties of Plants 2015, and the African Union model law for the protection of the rights of local communities, farmers, breeders, and for the regulation of access to biological resources offer relevant guidance.
The implications of COVID-19 in the workplace in South Africa
(Allied Business Academies, 2021) Baboolal-Frank, Rashri
COVID-19 created chaos across the globe. The effect and impact of the virus brought economies and countries to a standstill as lockdown conditions were imposed. Companies were forced to close, as they could not operate virtually. Mass retrenchment packages were undertaken for permanent staff. In South Africa, there were no retrenchment packages for contract workers and independent contractors as they were forced to resort to the unemployment insurance fund for financial relief. The companies in South Africa that operated remotely, used online mechanisms such as Zoom, Skype, Google Meet and Microsoft teams, for virtual interactions. Staff were imposed with the tasks and responsibilities of providing proof of productivity in the form of progress reporting via email to their line managers. These actions illustrated a monitoring mechanism by management to measure productivity of employees. The employees were pressurised to resume to a new normality, despite the abnormal conditions that surrounded them. The aim of this paper is to postulate the labour law protection of employees against the impact of COVID-19 in the virtual workplace and the way forward for employers during this novel period in South Africa.
Civil procedure
(Juta Law, 2021) Van Loggerenberg, Danie (Daniel Elhardus)
During the past year, various amendments to the Rules of the Supreme Court of Appeal, the Uniform Rules of Court and the magistrates’ courts rules came into operation. The COVID-19 situation continued to require the publication of various practice directives dealing with court operations during the pandemic by heads of court. The superior courts delivered judgments regarding various aspects of civil procedure. In some judgments trite principles were reiterated; in others new principles in respect of, among others, the application of rules of court were laid down. During this period, a number of articles dealing with different aspects of civil procedure were published.
Regulation and implementation of party funding in Burkina Faso and Ghana
(Unisa Press, 2021-12) Vohito, Sonia
There has been considerable momentum to address the issue of party finance and political corruption across the world, including in Africa; this is because political parties require funds to properly function and to actively participate in elections. This article will review the system of regulation and implementation of party funding in two West African countries, namely Burkina Faso and Ghana, and it will examine how financing of political parties is regulated and the impact on rule of law and good governance in both countries. Whether they have access to public or private funds, it appears that small political parties in Burkina Faso and Ghana continue to face challenges which ultimately affect their ability to function properly and to actively participate in elections. The article therefore submits that the phenomenon of party funding regulation in Burkina Faso and Ghana is a process in development which needs reinforcing in order to be fair and inclusive.

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