Research Articles (Public Law)

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A case for the right to education for stateless and undocumented children : a South African analysis in the light of international law
(Academy of Science of South Africa, 2024-11-25) Mahleza, Yeukai; Maake-Malatji, Mahlatse; ynd.mahleza@up.ac.za
This paper is grounded in the right to education, guaranteed to every child, whether stateless or undocumented. Being stateless means that the child is not considered to be a national by any State under the operation of its law and when a child is undocumented it means that they have no government-issued proof of identity. The Constitution of the Republic of South Africa, 1996 provides the right to education for all children, regardless of their nationality. However, whether stateless or undocumented, they encounter impediments when they attempt to exercise their right to education. The study questions whether the South African Government is complying with its constitutional and international legal obligations to provide the right to education to all children. The paper contends that it is not sufficient to state that every child has the right to education, and that there is a need to formulate guidelines and procedures to be followed in cases where children are undocumented or stateless. In addition, the paper analyses the relevant education laws and policies together with the immigration laws and the effects they have on one another. It further addresses how the provisions of immigration law related to education impede undocumented and stateless children from accessing the right to education. Accordingly, the study identifies the gaps in the laws regulating the right to education and their implications when stateless and undocumented children seek to exercise the right to education. This paper recommends that the South African Government adapts its education laws and procedures in ways that consider the circumstances of stateless and undocumented children.
Artifacts of judging : Justice Johan Froneman
(Academy of Science of South Africa, 2024-06-11) Van Marle, Karin; Du Plessis, Elmien
Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the "rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right". He further argued for the Constitution "to become … a living document". In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman. Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal. In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases.
Reproducing the conqueror's "South Africa" : an Azanian critique of the constitutionalist endorsement of assisted reproductive and reprogenetic technologies
(Unisa Press, 2024-12) Le Roux, Ilana; Ilana.leroux@up.ac.za
Discussions on the use, regulation, and development of assisted reproductive and reprogenetic technologies are dominated by a rights discourse, primarily paying attention to how these technologies can give effect to or violate individual or group rights within the current liberal human rights framework. “South Africa” has played a prominent role as Africa’s representative in this global discussion pertaining to the ethics of genetic and reproductive technologies; undoubtedly attributable to it having what is described by many as “one of the most progressive constitutions in the world.” One popular perspective presupposing the legitimacy of the 1996 constitution and prevailing human rights norms, argues for the relaxation of restrictions on these technologies to allow for the effective exercise and realisation of constitutionally protected rights. This article explores the use of these technologies from a constitutional abolitionist perspective espoused by the Azanian Philosophical Tradition. By understanding the 1996 constitution as the constitutionalisation of conquest, I contemplate the ways in which these technologies function in service of (global) White supremacy and settler domination in conqueror “South Africa.” The article argues that in a world ordered by biologic, these technologies effectively (re)produce the society envisioned by the conqueror; begging the question as to whether these technologies can indeed be used in service of a post-conquest “South Africa.”
Notes on the political significance of songs in promoting equality and maintaining historical legacy : legal challenges to hate speech in Afriforum v Economic Freedom Fighters [2022] ZAGPJHC 599;2022 (6) SA 357 (GJ
(Nelson Mandela University, 2025-01-13) Radebe, Martha Keneilwe
Song and music can be a powerful medium through which life is expressed (Adebayo “Vote does not fight’: examining music’s role in fostering non-violent elections in Nigeria” 2017 17 African Journal on Conflict Resolution 55 56). Music influenced most fights towards the struggle for independence in most African countries (Adebayo 2017 African Journal on Conflict Resolution 55 61). This sentiment is evident from the judgment in Afriforum v Economic Freedom Fighters EQ 04/2020) [2022] ZAGPJHC. This case note studies the effect of the importance of singing songs in a democracy and the limitations thereof. History contains numerous examples of how music was used as a tool for political transformation and social revolution (Adebayo 2017 African Journal on Conflict Resolution 55 64). The disadvantage lies in the reality that the singing of songs can, in some instances, feed hatred and lead to dire consequences such as the commission of hate crimes (Adebayo 2017 African Journal on Conflict Resolution 55 64). The Afriforum judgment endorsed a contextual approach to the interpretation of racist speech and whether it can be classified as hate speech.
What is in a surname? An enquiry into the unauthorised name changes of married women
(University of Pretoria, 2022) Matladi, Odirile
In recent years there have been reports of the Department of Home Affairs changing women’s surnames to that of their husbands upon the conclusion of a marriage without the married women’s consent. This conduct by the Department of Home Affairs officials infringes, as this article will argue, not only on the affected women’s right to just administrative action but also on the rights to equality and dignity and, in some instances, freedom of movement and universal suffrage. This article enquires into the possibility of taking the conduct of the Department of Home Affairs, which arguably amounts to administrative action, on judicial review seeking systemic relief. It will look at the sexist and patriarchal social norms relied upon to justify the conduct of the Department of Home Affairs and calls for intervening measures that not only result in broader social recognition but also effectively dismantle the systems and frameworks of inequality that continue to marginalise and subjugate women in the socially constructed gender hierarchy.
Guardians's reflection : the PSLR as a site for thinking about community ethics in the university
(University of Pretoria, 2022) Le Roux, Ilana
In this reflection I draw on the PLSR Editorial Board’s experiences to broadly think about our understanding of community within the university, and beyond. The purpose of this reflection is to remind readers of the PSLR’s significance and potential, and to encourage a radical rethinking of the type of university community we nurture.
Analysing the International Legal Framework on Nationality : an African and Asian perspective
(Unisa Press, 2024-06) Dube, Angelo; Mahleza, Yeukai
This article examines the prevention of and protection against statelessness through analysis of case law and laws that have dealt with this matter both internationally and at a regional level, with specific reference to two continents (Africa and Asia). The analysis also includes the remedies that are available to individuals who are stateless as well as the enforcement thereof. Cognisance is given to statelessness being the state of not belonging to any country, or not being recognised as a national of any country. The article also analyses how colonialism contributed to people being stateless and how laws have changed beyond the colonial era. Emphasis is placed on the need for consensus between states on what measures should be considered when determining citizenship. The desktop, library research approach will be used in this research. Primary and secondary sources will be consulted. Case law, conventions, and statutes will be the main sources of law. The research will evaluate the differences between the selected jurisdictions’ nationality laws. The way that nationality rules have been applied in those jurisdictions will also be determined by consulting case law. Additionally, journal articles, opinion pieces, and other internet-based resources will be used as secondary sources for the research. These sources offer valuable insights into the concerns expressed by interested parties about nationality and the elements that each jurisdiction has considered and needs to incorporate into their legal framework.
Establishing the erga omnes character of the obligation to prevent transboundary environmental harm
(Brill Academic Publishers, 2025-01) Phyffer, Jessie
This article argues that the obligation to prevent transboundary environmental harm is erga omnes. In a fractured landscape, this obligation is the closest that international environmental law comes to a general obligation to protect the environment and should its erga omnes character be established, all States will be able to act when it is breached. In the absence of a settled methodology for identifying erga omnes obligations and using methodologies put forward in the literature and the characteristics of the erga omnes concept, this article argues that four criteria need to be met for an obligation to be erga omnes, namely that the obligation (i) has an agreed upon customary content, that it protects a (ii) common and (iii) essential interest, and (iv) that the ‘international community as a whole’ is the ultimate beneficiary. Using these criteria, the article is able to establish the erga omnes character of the obligation to prevent transboundary environmental harm.
An environmental agreement in a trade court - is the WTO's agreement on fisheries subsidies enforceable?
(Cambridge University Press, 2025-02) Auld, Kathleen; Del Savio, Linda; Feris, L.A. (Loretta); loretta.feris@up.ac.za
The 2022 Agreement on Fisheries Subsidies (AFS) is the culmination of over 20 years of negotiations within the WTO's Doha Development Round. Although it can be considered a small victory in the fight against declining fish stocks, the Agreement remains unfinished and underdeveloped. Of particular concern is the enforceability of the Agreement. While WTO Members recognize that the AFS was created to deal with a problem that has both socioeconomic and environmental implications, the Agreement relies on established WTO dispute settlement rules, which were created to resolve trade disputes. The paper assesses the difficulties of enforcing the AFS under these rules and considers additional provisions that could be included in subsequent negotiating rounds to ensure an effective and enforceable agreement. Recommendations cover different stages of the dispute settlement process and include alternative means of dispute resolution, measures to expedite proceedings, and retaliation procedures adapted to the AFS.
A multivariate dataset on water–energy–food nexus : multi-actor governance for social justice
(Elsevier, 2024-10) Ngarava, Saul; Vijge, Marjanneke J.; Duplessis, Willemien; Zhou, Leocadia; Viljoen, Germarie; Nyambo, Patrick; Rantlo, Tiisetso John; Mokadem, Naziha; Qumbu, Bronwen; Bongoza, Sibulele; Mugadza, Alois A.
The article presents and validates an extensive multivariate dataset that offers insights into water–energy–food (WEF) nexus governance for social justice at the intrahousehold, household, and community levels. The lack of insights in the WEF nexus debate that take social justice and governance into account is what spurred the data collection. The initial process involved scoping the originally selected investigated sites and their suitability. Once the research areas were identified, the data were collected from 1184 households in the Matatiele, Magareng, and Greater Taung Local Municipalities in South Africa, using a semi-structured questionnaire and KoboCollect software. The freely available software was installed on Android Tablets which were used by the enumerators. The questionnaires were initially piloted in Matatiele Local Municipality, testing for internal validity and skip patterns, as well as time to complete the questionnaire. The reliability of the Likert responses from the questionnaire was evaluated using Cronbachʼs alpha. The questionnaire was then refined for data collection and utilized a total of twenty-two (22) locally trained enumerators who were employed at the investigated sites. These enumerators were trained in administering the questionnaire and the use of the KoboCollect software used in data collection. The enumerators also received training on how to conduct the survey ethically, including informed permission, confidentiality, and the option to withdraw from the interview. The design of the data collection process was a cross-sectional survey that was conducted between 6 June and 4 August 2022, using purposive sampling. At the end of each data collection day, the enumerators uploaded their collected data into the KoboTool cloud, which allowed the lead in the survey to assess the data and effect any correctional measures on the questionnaire if the need arose. The enumerators also used a WhatsApp chat group to communicate real time opportunities and challenges in the questionnaire, which allowed the lead in the survey to constantly update the questionnaire. The multivariate questionnaire was divided into sections of socioeconomic and demographic characteristics, community-level governance, decision-making, food, energy, and water security, social justice, legal knowledge, and rights to utilize these resources. The dataset will be of significance to multi-disciplinary researchers focusing on WEF security, governance, and social justice in Southern Africa. Furthermore, environmental and sustainability practitioners can find valuable insights from the provided data. The employed methodology is replicable and adaptable, enabling real-time monitoring of social justice and governance in the context of food, energy, and water security. The real time monitoring of governance and social justice in water, energy and food allows for the possibility of continual data collection and updating, and if a longitudinal design is adopted, it can be used for impact inquiry of any interventions or policies.
Realising the right to electricity through off-grid power solutions in South Africa
(Academy of Science of South Africa, 2023-11-23) Viljoen, Germarie; Dube, Felix S.
The South African government is navigating many basic municipal service delivery challenges, including a growing electricity supply deficit. Eskom Holdings SOC Limited, the state-owned power utility, is struggling to generate and supply a stable and uninterrupted flow of electricity through its grid system. The inadequate generation capacity results in rotating power outages, known as loadshedding, which occur when demand surpasses generating capability. This fundamental service delivery challenge, in conjunction with South Africa's climate change responses, including the decision to work towards energy efficiency, renewable energy and cleaner energy or a "just transition" from coal to clean energy, encourages many South Africans who have the necessary means to invest in off-grid energy solutions that operate alongside and at times independently of Eskom's grid. This paper considers from a legal perspective how and to what extent legislation on electricity supply and municipal by-laws empower household consumers to fulfil their right to electricity by going off-grid. The paper ultimately considers the import of this on South Africa's energy governance framework for electricity provision in the country.
A critical legal perspective on statutory intoxication - time to sober up?
(Nelson Mandela Metropolitan University, Faculty of Law, 2023-10) Stevens, G.P. (Geert Philip); Le Roux-Bouwer, J.
No abstract available.
South Africa and the “othering” of the “non-euro-Christian” religions
(Cambridge University Press, 2024-05) Dyani-Mhango, Ntombizozuko
No abstract available.
Lessons from the law and politics of federalism in Africa : federalism Is bigger than federation; constitutions are more than single mega-documents; the international trumps the domestic; and the past continues to matter
(Nomos Verlagsgesellschaft, 2023) Erk, Jan Galip
The study of federalism brings together both political scientists and constitutional lawyers. It is one of those fields of study where the scholarly and the applied are inextricably interlinked. However, studies on and from the non-Western world tend to be underrepresented in the field, subsequently leading to both scholarly and applied shortcomings. This article is an attempt to start undoing that unevenness by identifying four lessons from the African continent. While doing so, we pursue two simultaneous intellectual goals: One is to use Africa to help sharpen the theoretical insights and conceptual tools of comparative federalism in general – applicable to both the West and the rest. And secondly, running parallel to this, the article also exposes the reader to the varieties of federalism in Africa. This not only enriches our scholarly repertoire but will also help nuance and finetune some of the prevailing theoretical assumptions in the field, and thus improve the chances of federalism to deliver on its promises in applied terms. The comparative lessons drawn from the African experience can be grouped under four categories. 1) The article builds on the conceptual distinction between federalism and federation; and argues that ideas and practices of federalism in Africa are more numerous than the formal federations of the continent. 2) The pre-colonial and imperial history of the continent is marked by British-style amalgamations of constitutional documents, practices, unwritten rules, and customs – some at the imperial level, some regional, some local. 3) International-level factors, especially the arrival of colonialism, and then later, the geopolitical pressures of the Cold War, played key roles in influencing the choice and workings of constitutions on the continent. 4) History has left each African country with certain dynamics unique to them making cutting and pasting best practices from abroad without attention to the local context problematic.
South Africa
(Pretoria University Law Press, 2023) Grobbelaar-Du Plessis, IIze
According to the Census 2011, conducted by Statistics South Africa (StatsSA) more than a decade ago, the total population of South Africa was 51.8 million. The latest census by StatsSA was conducted from March to April 2022, but the official Census 2022 data was not available at the time of writing this country report.
The (not so hidden) elephant in the room : confronting international constitution-making's eurocentric gaze
(Cambridge University Press, 2023-10-23) Fagbayibo, Babatunde Olaitan
Anna Saunders’s article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” is an important addition to the literature that problematizes the idea of international constitutionmaking. 1 At the heart of Saunders’s critique of international constitution making—defined as the involvement of international institutions in national constitution-making processes—is the point that the parameters of what constitutes “local ownership” of the constitution-making process is detached from debates on rethinking neoliberal economic structures and material interests.2 As a result, constitutions in post-conflict societies fail to speak to the socio-economic realities of a people and, most importantly, diminish their agency to envision alternatives. Saunders offers a detailed historical account of why such failure, or what she refers to as “selective technicity,” has become standard practice, and then goes further to stress the imperative of reimagining the vocabulary of what constitutes “local ownership” in the context of meaningful societal transformation. In this essay, I extend Saunders’s thesis to argue that if the international constitution-making process does not shed its Eurocentric gaze, we will be unable to proffer sustainable suggestions to make the process responsive to the realities of a people. Through its Eurocentric gaze, international constitution-making is rooted in fixed, prefabricated ideas of permissible juridical and politico-economic structures.Although the epistemic agency of the people to determine their constitutional destiny is often discussed, in reality such agency is expected to operate within strict neoliberal politico- economic tenets. The result of this contradiction is a dialogue of the deaf, where the so-called “international experts” together with compromised national elites speak around and past the people whose existence depends on the stipulated constitutional norms. This essay unpacks the Eurocentric gaze and suggests a fundamental rethink, one that privileges the “dignity of agency.” I owe this terminology to the PrimeMinister of Barbados,Mia Mottley. Writing about the need to envision a new kind of internationalism, she argued that the pervading distrust in national governments and global institutions stems from feelings of exclusion.3 The alternative is an “ethical compass” that sees trust and inclusion as indivisible, one that “involves giving individuals . . . the dignity of agency, a say in their own affairs, and a stake, above all else, in their own society and economy.”4 As such, dignity of agency speaks to two interrelated issues: how a people, without manipulation, shape the parameters of discussions on ideas that affect their existential concerns; and how they see themselves in normative outputs.
The regulation of health data sharing in Africa : a comparative study
(Oxford University Press, 2024-01) Nienaber McKay, Annelize G.; Brand, Dirk; Botes, Marietjie; Cengiz, Nezerith; Swart, Marno
The sharing of health data is an essential component in the provision of healthcare, in medical research, and disease surveillance. Health data sharing is subject to regulatory frameworks that vary across jurisdictions. In Africa, numerous factors complicate the regulation of health data sharing, including technological, motivational, economic, and political barriers, as well as ethical and legal challenges. This comparative study examines the regulation of health data sharing in Africa by comparing and contrasting the legal and policy frameworks of five African countries. The study identifies gaps and inconsistencies in the current regulatory regimes and provides recommendations for improving the regulation of health data sharing in Africa.
What constitutes adequate legal protection for the collection, use and sharing of mobility and location data in health care in South Africa?
(AOSIS, 2023-05-30) Brand, Dirk; Nienaber McKay, Annelize G.; Cengiz, Nezerith
Mobile phone technology has been a catalyst that has added an innovative dimension in health care and created new opportunities for digital health services. These digital devices can be viewed as an extension of the person using them due to the deluge of personal information that can be collected and stored on them. Data collected on mobile phones are used extensively in health services and research. Personal, mobility and location data are constantly collected. The unique mobile phone architecture provides for an easy flow of data between various role players such as application developers and phone manufacturers. The collection, storage and sharing of personal information on mobile phones elicit various legal questions relating to the protection of privacy, consent, liability and the accountability of stakeholders such as health insurance providers, hospital groups and national departments of health. SIGNIFICANCE : We analyse the major legal concerns of mobility and location data collection and processing through mobile phones in the context of health care and provide recommendations to develop data protection guidelines that are built on the principles of lawfulness, fairness and transparency. The issues explored are of relevance in an African context and to a broader international audience
A response to Thaldar et al. (2023) : data sharing governance in sub-Saharan Africa during public health emergencies
(Academy of Science of South Africa, 2023-11) Brand, Dirk; Singh, Jerome A.; Nienaber McKay, Annelize G.; Cengiz, Nezerith; Moodley, Keymanthri
SIGNIFICANCE : We elucidate the misinterpretations raised by Thaldar et al. (S Afr J Sci. 2023;119(11/12), Art. #15722) on our previous publication in which we outlined the data sharing governance landscape in selected African countries.
Degrowth and international law : assessing the compatibility of degrowth and the principle of sustainable development
(Unisa Press, 2022-12) Phyffer, Jessie
This article explores whether the international law principle of sustainable development is compatible with the degrowth development framework. Sustainable development is a guiding and binding principle of international law which calls for development that meets the needs of the current generation without compromising the ability of future generations to meet their own needs. This article is grounded in the international law principle of sustainable development because of the significant position it occupies in international law as a guiding principle of the United Nations. Degrowth calls for the intentional downscaling of production and consumption at all levels to bring human activity back within planetary boundaries while securing decent levels of human well-being. It challenges the common-sense understanding that economic growth is an indispensable part of development and instead relies on policies which redistribute already existing wealth to fund social development projects. An approach to social concerns in this way ensures that less environmental capital is needed to develop States. This article takes a broad approach to sustainable development and degrowth and argues that they are complementary because they share the same base, namely the intersection between economic development, social development, and environmental protection. This article ultimately concludes that the principle of sustainable development is compatible with and is most purely manifested within a degrowth framework.

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