“Alles skud, en dit voel ook meteens
die aarde dryf los, ’n sinkende vlot,
en die mishoring roep deur die reëns
en die winde om genade tot God”
(Opperman Joernaal van Jorik (1974) 57).
ABC is a company incorporated, domiciled and resident in Ethiopia; its central administration and principal place of business are in Ethiopia. DEF is a company incorporated, domiciled and resident in Mauritius; its central administration and principal place of business are in Mauritius. ABC (seller) and DEF (buyer) concluded a contract of purchase and sale in respect of 100 000 bags of roasted coffee beans of arabica quality and grown in the Ethiopian highlands by an established cooperation of small farmers. The contract was negotiated and concluded in Mauritius. In terms of the FOB10 contract, drafted in English, the goods had to be delivered on a ship in the harbour of Massawa (Eritrea), to be transported by the Mediterranean Shipping Company to Durban harbour in South Africa. Payment, by electronic funds transfer from DEF’s account in Delhi, India, had to take place in American dollar into ABC’s account at GHI Bank located in the Dubai International Financial Centre (Dubai, United Arab Emirates). Principles of Commercial Private International Law” 2018 Stell LR 347 and Neels and Fredericks “The African Principles of Commercial Private International Law and the Hague Principles” in Girsberger, Kadner Graziano and Neels (gen eds) (n 1) 239.426. Also see Neels and Fredericks “An introduction to the African
Principles (n 26).in the AOS Guide (n 21) and in the official commentary on the Hague
“Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.”
“Overriding mandatory provisions are rules of law which are regarded as crucial by a country for safeguarding its public interests (including its political, social or economic organisation) to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this instrument.”
“However, it seems obvious that such a provision is superfluous, as a reference to a national law under the ordinary choice of law rules refers [to] all the rules of the lex causae, including the internationally mandatory provisions, which, by definition, are important parts of the lex causae. This follows logically from the nature of the ordinary choice of law rules, and the fact that neither Rome I, Article 9 nor [Rome I, Article] 12 excludes the application of the internationally mandatory provisions of the lex causae.”67 65 The mandatory rules that are intended are those “which must be applied to the situation irrespective of the law applicable to the contract” (a 9(1)).
“Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.”
ahead for UK private international law after Brexit” 2021 Journal of Private International Law 1; Bouwers “Brexit and the implications for tacit choice of law in the United Kingdom” 2018 Obiter 728 and Mortensen “Brexit and private international law in the Commonwealth” 2021 Journal of Private International Law 18.on private international law: Beaumont “Some reflections on the way
“(4) In exceptional circumstances, the overriding mandatory rules of another country may be applied, provided that such law has a manifestly close connection to the particular situation.
(5) In considering whether to give effect to any of the overriding mandatory rules mentioned in paragraph (3) or (4),112 regard must be had to their nature and purpose and to the consequences of their application or non-application.” 109 For South Africa, see the opposing views in literature as referred to in Neels “South African perspectives on the Hague Principles” in Girsberger, Kadner Graziano and Neels (gen eds) (n 1) 350 369 n 172.
doctrine in the Eswatini courts (the phenomenon of dual cumulation)” 2021 Journal of Private International Law 361.or liberative prescription in private international law—Canadian
“[D]omestic public policy bearing on international transactions may also be evaluated for reasonableness or rationality and weighed or balanced against the public policies of other governments that may also have a legitimate interest in the international transaction …. [C]onduct under and effect of the international transaction on the territory of a concerned state obviously gives its government a legitimate regulatory interest but the outcome will still depend on how much conduct and effect there is on its territory and on the nature of the measures it has taken and on its measured response under standards of governmental behaviour that must be considered increasingly international as well.”123 119 a 11(4).
“(1) Where a contract infringes a mandatory rule, whether of national, international or supranational origin,126 … the effects of that infringement upon the contract are the effects, if any, expressly prescribed by that mandatory rule. 122 Cf Kuipers (n 1) 67–68; Nygh (n 1) 208–210 and Peari (n 1) 212–215. See, in general, Neels “An experiment in the systematization of South African conflicts rules” in Omlor (ed) Weltbürgerliches Recht. Festschrift für Michael Martinek zum 70. Geburtstag (2020) 529.
(2) Where the mandatory rule does not expressly prescribe the effects of an infringement upon a contract, the parties have the right to exercise such remedies under the contract as in the circumstances are reasonable.”127 123 Dalhuisen Dalhuisen on Transnational Comparative, Commercial, Financial and Trade Law I Introduction—The New Lex Mercatoria and its Sources (2013) 327 (cf 274–279). Also see Dalhuisen Dalhuisen on Transnational Comparative, Commercial, Financial and Trade Law II Contract and Movable Property Law (2013) 222: “The appropriateness of applying [overriding mandatory rules] in international situations … may depend also on proportionality and legitimacy seen from an international perspective” (contrast the discussion of overriding mandatory rules in the Rome I Regulation at 222–223); cf Lando and Nielson (n 62) par 14: “internationally mandatory provisions” and Van Rooyen Die Kontrak in die Suid-Afrikaanse Internasionale Privaatreg (1972) 219: “Die kernvraag is dus of die derdelandsreël redelikerwys aanspraak maak op gelding.”
largely taken the courier system’s efficiency for granted”.brought so much confidence to the delivery process that banks have
“A bank assumes no liability or responsibility for the consequences arising out of the interruption of its business by Acts of God, riots, civil commotions, insurrections, wars, acts of terrorism, or by any strikes or lockouts or any other causes beyond its control.
A bank will not, upon resumption of its business, honour or negotiate under a credit that expired during such interruption of its business.”
“A bank assumes no liability or responsibility for the consequences arising out of delay … in the transmission of any message or delivery of letters or documents, when such messages, letters or documents are transmitted or sent according to the requirements stated in the credit, or when the bank may have taken the initiative in the choice of the delivery service in the absence of such instructions in the credit.”
“It is submitted that, in the case of blockchain bills of lading, a sensible interpretation of current legislation, together with the flexibility of the common law, would be able to provide the necessary legal framework for such bills of lading. It is nevertheless suggested that the Model Law will bring further legal certainty and harmonisation with other jurisdictions, for the benefit of global maritime trade.”
“The eUCP is not a revision of the UCP. The UCP will continue to provide the industry with rules for paper letters of credit for many years. The eUCP is a supplement to the UCP that, when used in conjunction with the UCP, will provide the necessary rules for the presentation of the electronic equivalents of paper documents under letters of credit.”36 35 The information in this paragraph is contained in periodic reports published in the electronic database of the ICC related to documentary credits dcprofocus. Most were also published in the quarterly newspaper DC Insight (an electronic version of which is also available on dcprofocus). See, inter alia, “eUCP Final version approved” Vol 8 No 1 Jan–March 2002 DCInsight; “Electronic supplement to the UCP advances; URGETS rules in suspension” 28 November 2000 dcpro-DCWN_EUCP_ANS_URGETS.XML; “eUCP text takes final form” dcpro-DCWN_12October20011063.XML.
“Existing ICC rules, such as UCP 600 and URC 522, whilst being invaluable in a paper world, provide limited protection when applied to electronic transactions. As such, it is inevitable that traditional trade instruments will, over time, inexorably move towards a mixed ecosystem of paper and digital, and, ultimately, to electronic documents alone. In this respect, the eRules provide numerous benefits, some of which are listed below:
“What blockchain technologies promise is the instant movement of data (not just the movement of electronic documents …) from one [party] to the other reducing decision and product processing time and thereby shortening the trade transaction life-cycle. Data visibility, complex analytics and a shift from transaction-based value to information-based value will follow, and the ability to extract, manipulate and benchmark data that would originally have been found only in hardcopy documents will be an important cornerstone of the way business is conducted, risk is mitigated, and commercial transactions will be financed on a cost-effective, global and near-real time basis.”52 51 See (n 46) 144.
“The URDTT should be regarded as an over-arching set of rules under which other rulebooks may co-exist and the trade transaction may be documented. This recognises the prior existence of industry terms and conditions, proprietary rulebooks pertaining to individual service providers, as well as the existence of rulebooks developed in conjunction with distributed ledger projects. However, the URDTT may in some cases eventually remove the need for duplicate/repetitive clauses in user agreements and/or proprietary rulebooks.”
“It remains the core purpose of the ICC rules—and of industry practice—to facilitate and enable good-faith trade, and it is clear that the continuing flow of trade is critical during the COVD-19 pandemic. Accordingly, all parties are encouraged to continue to interact on this basis and to leverage rules as well as sound commercial practice to find solutions to the current situation.”77 76 par 1(v).
“There is no doubt that the problems that are being faced would have been eased if paper documentation was no longer such a necessary requirement for so many aspects of global trade financing. As such the ICC is taking the opportunity to stress the importance of digitalisation and will continue to promote the broader use of ICC eRules i.e., eUCP Version 2.0, eURC Version 1.0, and URBPO as well as UNCITRAL Model Laws on Electronic Commerce, Electronic Transferable Records, and Electronic Signatures.”
“Observing that the trade industry has long discussed trade digitisation and its many facets, SWIFT makes clear that immediate action is necessary to transform talk into results. In releasing its August 2021 paper, ‘Digitising trade: The time is now’, SWIFT identifies what it believes is needed to successfully facilitate the digitization of global trade.
headed by the Chief Executive Officer. SWIFT is overseen by the G-10 central banks (Belgium, Canada, France, Germany, Italy, Japan, The Netherlands, United Kingdom, United States, Switzerland, and Sweden), as well as the European Central Bank, with its lead overseer being the National Bank of Belgium. In 2012, this framework was reviewed and the SWIFT Oversight Forum was established, in which the G-10 central banks are joined by other central banks from major economies: Reserve Bank of Australia, People’s Bank of China, Hong Kong Monetary Authority, Reserve Bank of India, Bank of Korea, Bank of Russia, Saudi Arabian Monetary Agency, Monetary Authority of Singapore, South African Reserve Bank and the Central Bank of the Republic of Turkey. The SWIFT Oversight Forum provides a setting for the G-10 central banks to share information on SWIFT oversight activities with a wider group of central banks.” See Company. The Executive Committee is a group of full-time employees ? (26-05-2022). https://www.swift.com/about-us/legal/compliance-0/swift-and-sanctions#how-is-swift-governed
“… as a matter of general international law, a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alios, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor contemplating investment that the government would refrain from such regulation.”20 20 the Methanex case (n 19) Part D (IV).
, ICSID Case no ARB/97/3, Award, 20 August 2007 par 7.5.21.Aconquija SA and Vivendi Universal v Argentine Republic
“…references to ‘like circumstances’ in paragraph 2 requires an overall examination on a case-by-case basis of all the circumstances of an investment including, but not limited to:
a) its effects on third person and the local community;
b) its effects on the local, regional or national environment, including the cumulative effects of all investments within a jurisdiction on the environment;
c) the sector in which the investor is in;
d) the aim of the measure concerned;
f) the regulatory process generally applied in relation to the measure concerned; the examination referred to in this paragraph shall not be limited to or be biased toward anyone factor.”51 50 the Guris case (n 48) par 255.
“Investors of one Party whose investments in the territory of the other Party suffer losses due to war, armed conflict, revolution, state of national emergency, insurrection, civil disturbances or other similar events, shall be accorded by the latter Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable treatment than that which the latter Party accords to its own investors or to investors of a third State.”57 56 a 9 of the Morocco-Nigeria BIT.
criminal standard of beyond reasonable doubt.”to a standard higher than the balance of probabilities but less than the
f (https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/instructionalmaterial/wcms_751232.pdf (08-01-2022)).2
(2020) 5 (https://datagrail.io/downloads/GDPR-CCPA-cost-report.pdf (08-01-2022)).The Age of Privacy: The Cost of Continuous Compliance
Google Spain SL and Google Inc. v AEPD, where the court introduced the so-called “right to be forgotten” under the DPD (CJEU, the Google Spain case C-131/12 par 89 ff.), in context of s 10 and s 24 the POPIA. See also Baumann and Ismail (n 1) 732 ff on the adoption of the Breyer judgment to interpret the term “personal information” under the POPIA. The latter will also be discussed below in par 3.1.the idea of the adoption of the CJEU’s decision in
365 ff and Haase Datenschutzrechtliche Fragen des Personenbezugs (2015) 259 ff.Datenschutz (ZD)
report (08-01-2022)). documents/how-social-media-is-powering-small-business-in-africa-
agreement to the processing of personal data relating to him or her”. which he or she, by a statement or by a clear affirmative action, signifies
et al “A safe operating space for humanity” 2009 Nature 461 472–475.Steffen, Noone
“2(a) to protect health, well-being and the environment by providing reasonable measures for—
(i) minimising the consumption of natural resources;
(ii) avoiding and minimising the generation of waste;
(iii) reducing, re-using, recycling and recovering waste;
(iv) treating and safely disposing of waste as a last resort”
“When numerous fires break out at the landfill site, when thick smoke and dust engulf the City, when schools have to be closed, when sections of the N3 freeway have to be shut down and when citizens start complaining about their health and well-being due to the pollution, then there has to be something seriously wrong with the municipality’s operation of this landfill site. It is no answer for the municipality to merely say that it is ‘trying’ in circumstances when the overall evidence suggests the opposite”.75 74 the Msunduzi case (n 66) par 91.
“This municipality like so many others in the country has simply lost touch with its citizens. The officials who are in charge of the municipality seem to forget that they are there only to serve the interests of everyone who live and work within the municipality’s jurisdiction. … From a ‘City of Choice’ the municipality and its largely incompetent, inefficient and inept officials have literally turned this city into one of filth, grime and degradation. This has to stop. Any expected changes can only be achieved not by political will which is sadly lacking but by the efforts of civil society and organisations such as the Commission herein”.77 76 the Msunduzi case (n 66) par 107.
“There is another, even larger illegal dumpsite 200 metres along the road from my house in the opposite direction and close to DD Siwisa Primary School. … The dumpsite has been there for more than five years. The site has never been cleared in the past five years. The rubbish smells terrible and often makes learning conditions at the school intolerable. The school is forced to keep classroom windows closed, even when the weather is hot. Also, young learners often play at the illegal dumping site after school as it is in an open and unsupervised space.
…
Sometimes, to clear the informal dumpsites, residents burn the rubbish, which produces smoke and fumes. Animals such as dogs, donkeys and goats rip open rubbish bags at the unofficial dumping sites. The smell is always unpleasant, and at times it is unbearable. It is particularly bad during warm weather. I don’t open my door anymore when it is hot because the smell comes into my house and is overpowering”.84 83 “Makhanda residents take Makana Municipality to court over uncollected refuse” Legal Resource Centre https://lrc.org.za/october-2nd-2020-media-release-makhanda-residents-take-makana-municipality-to-court-over-uncollected-refuse/ (09-11-2021).
(11-11-2021). speeches/minister-barbara-creecy-18th-ordinary-session-african-ministerial-conference-environment
“There is, however, concern that the institutionalisation of the transformation agenda for women may have slowed down. Central to this concern are the continuing challenges and multiplicity of oppressions faced by South African women informed by their differently constructed subjective positions in relation to the political, economic, and social power structures. Although the agenda for gender equality and women’s empowerment in South Africa is advanced in comparison with many other countries, efforts to achieve gender equality and women‘s empowerment through legislative and policy interventions have yet to substantially transform society and the economy.”22 22 Department of Women “South Africa’s report on the progress made on the implementation of the Beijing Platform for Action 2014-2019 Final Draft” 2019 21.
“Patriarchy is a system of society or government in which the father or eldest male is head of the family and descent is reckoned through the male line hence, the system promotes male privilege. The attitudes and expectations organized on this basis rank men above women, providing a social structure that gives men uncontested authority. It is an obsession with control as a core value around which social life is organized. Men maintain their privilege by controlling women and anyone else who might threaten their positions. Women are subordinated and treated as inferior because they are culturally defined as inferior. Men however, do not suffer because femaleness is a devalued and oppressed phenomenon”.66 66 Johnson and Leone, quoted in Mudau and Obadire “The role of patriarchy in family settings and its implications to girls and women in South Africa” 2017 Journal of Human Ecology 67–72. See also Kurk and Okazawa-Rey “Patriarchy, the system” 2004 Women’s Lives Multicultural Perspectives 25–32. For a discussion of patriarchy and the workplace see the classic, Witz Professions and Patriarchy (1992) and for a general discussion of the history of patriarchy, see Miller Patriarchy (2017).
“The South African labour market is generally more favourable to men than it is to women and men are more likely to be in paid employment than women, regardless of race in general, but with particular significance for African women in the main. Significant numbers of women, mainly black African women, remain in low-productivity jobs, often in informal sector enterprises whose access to technology is poor”.78 78 Report of the UN Secretary General, E/CN.6/2017/3, to the 61st Session of the Commission on the Status of Women, 2016 26.
“any act or omission, including a policy, law, rule, practice, condition or situation which, whether intentionally or not, directly or indirectly—
(a) imposes burdens, obligations or disadvantage on;[or]
(b) withholds benefits, opportunities or advantages from[,];
(c) causes prejudice to; or
(d) otherwise undermines the dignity of, any person [on] related to one or more of the prohibited grounds[;],irrespective of whether or not the discrimination on a particular ground was the sole or dominant reason for the discriminatory act or omission”.
“(a) the full and equal enjoyment of rights and freedoms as contemplated in the Constitution;
(b) equal right and access to resources, opportunities, benefits and advantages;
(c) [and includes] de jure and de facto equality;
(d) [and also] equality in terms of impact and outcomes; and
(e) substantive equality”.
24. (1) The State and public bodies have a duty and responsibility to eliminate discrimination and to promote and achieve equality.
(2) All persons have a duty and responsibility to eliminate discrimination and to promote equality.
(3) The State, public bodies and all persons have a duty and responsibility in particular to—
(a) eliminate discrimination on the grounds of race, gender and disability;
and
(b) promote equality in respect of race, gender and disability.
(4) The State, public bodies and the organisations and institutions referred to in section 28(1) must take reasonable measures, within available resources, to make provision in their budgets for funds to implement measures aimed at eliminating discrimination and promoting equality referred to in this Chapter”.
“(6)The measures to be adopted by the State to achieve equality must—
(a) proactively address systemic and multidimensional patterns of inequality and discrimination found in social structures, rules, attitudes, actions or omissions which prevent the full and equal enjoyment of
rights and freedoms as contemplated in the Constitution, including equal access to resources, opportunities, benefits and advantages and social goods; and
(b) provide for reasonable accommodation of the needs of persons on the basis of any of the prohibited grounds.”90 90 clause 25(6).
“prescribe services to be provided to a complainant who is a child, a person with a disability or an older person, prescribe the manner in which a functionary who must deal with a complainant who is a child, a person with a disability or an older person in order to protect them against further acts of domestic violence, prescribe services to be provided to a complainant who is an adult person, provide for a public and communication initiative to education the public on the provisions of the Act [and] the obligations of the … South African Police Services … provide for the designation of accredited shelters … prescribe the manner in which a risk assessment must be conducted in respect of a complainant to provide or refer the complainant for further services”.
“a prosecutor may not refuse or institute a prosecution or withdraw a charge, … [where] that contravention or offence involve[s] the infliction of grievous bodily harm or a dangerous wound against the complainant or a related person, or where the complainant or a related person is threatened with a weapon, unless that prosecutor is authorised thereto by the relevant Director of Public Prosecutions”.
2021 Journal of Sexual Aggression at DOI: 10.1080/13552600.2021.1892219 (21-09-2021).analysis of #MenAreTrash”
over this period. It is widely believed that many child abandonments go unreported, yet these estimated numbers point to a total of over 3500 babies and children who were abandoned over this twelve month period (Weekend Post 27/08/2010).”Gauteng province) reported rescuing an average of fifteen babies a month
“(3) A parent, guardian, other person who has parental responsibilities and rights in respect of a child, caregiver or person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, is guilty of an offence if that parent or caregiver or other person—
(a) abuses or deliberately neglects the child or
(b) abandons the child.”
“113. Concealment of birth of newly born child—
(1) Any person who, without a lawful burial order, disposes of the body of any newly born child with intent to conceal the fact of its birth, whether the child died before, during or after birth, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years.
(2) A person may be convicted under subsection (1) although it has not been proved that the child in question died before its body was disposed of.
(3) The institution of a prosecution under this section must be authorised in writing by the Director of Public Prosecutions having jurisdiction.”
“239. Evidence on charge of infanticide or concealment of birth.—
(1) At criminal proceedings at which an accused is charged with the killing of a newly born child, such child shall be deemed to have been born alive if the child is proved to have breathed, whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother.
(2) At criminal proceedings at which an accused is charged with the concealment of the birth of a child, it shall not be necessary to prove whether the child died before or at or after birth.”
“Before the pandemic, 59% of South Africa’s children lived in households with an income below Stats SA’s poverty line of R1 183 per person per month, while 30% of children lived below the food poverty line of R585 per month or R20 a day. This meant that a third of children lived in households with not enough money to meet their daily energy requirements. In 2018, child hunger affected 2.1 million children (11%) nationally, of whom 197 000 lived in the Western Cape.”39 38 Ibid.
Results-from-Wave-3-of-NIDS-CRAM-1.pdf (21-01-2022).Patel-L.-Bridgman-G.-2021-Hunger-in-South-Africa-during-2020-
“parent, guardian or care-giver of a child who abandons the child may not be prosecuted under section 25465 for such abandonment if the child— (a) is left within the physical control of a person at the premises of a hospital, police station, fire station, school, place of safety, children’s home or any other prescribed place; and (b) shows no signs of abuse, neglect or malnutrition.” 63 Bhalla “The Present Situation and Issues Relating to Children being Abandoned in baby boxes/cradle in India” in conference proceedings of 14th Asian Congress of Health Promotion in Kumamoto, Japan dated April 2018 46–50; Rosenberg (n 52) 940.
rights in respect of a child but who voluntarily cares for the child either indefinitely or temporarily, commits an offence if that parent or care-giver or other person—(a) abuses or deliberately neglects the child; or (b) abandons the child, and is liable on conviction to a fine not exceeding N$50 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment. (2) A person who is legally liable to maintain a child commits an offence if that person, while able to do so, fails to provide the child with adequate food, clothing, lodging and medical assistance and is liable on conviction to a fine not exceeding N$50 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment.”of a child, care-giver or person who has no parental responsibilities and
“CHAPTER 23
MECHANISMS FOR SAFE RELINQUISHMENT OF INFANTS: BABY SAVERS, DESIGNATED SAFE HAVEN PROVIDERS”
316(1) A Baby Saver or Designated Baby Save Haven Provider may only operate after being certified to comply with the standards prescribed by the Minister in terms of the relevant regulations, by way of a certificate of compliance;
316(2) When making use of Baby Savers or Designated Safe Haven Providers the following provisions must be complied with in order to qualify as Safe Relinquishment of an Infant—
(a) Age of the Child—an infant of one year old or younger may be safely relinquished in a Baby Saver, or to a Designated Safe Haven Provider by any person mentioned in section 316(2)(b);
(b) Relinquishing person is a person who is reasonably deemed to be:
(i) either of the parents; or
(ii) the legal guardian; or
(iii) a person or caregiver acting with the consent of the parents.
(c) Abuse—If an Infant shows any signs of Abuse, in terms of section 1 of the Act, upon being relinquished in a Baby Saver or to a Designated Safe Haven Provider—
(i) The Abuse must be reported to the South African Police Services as prescribed;
(ii) The Relinquishing Person will be prosecuted for Abuse in terms of section 305(3)(a) and (d) of the Act; and
(iii) The Relinquishing Person will not enjoy anonymity and confidentiality as guaranteed in section 316(4).
316(3) Immunity from prosecution—a Relinquishing Person who safely relinquishes an Infant in a Baby Saver or to a Designated Safe Haven Provider and the Infant shows no signs of Abuse, will be immune from prosecution for Abuse in terms of section 305(3)(a) and (d) of the Act.
316(4) Anonymity and confidentiality—a relinquishing person is guaranteed absolute anonymity and confidentiality when making use of a Baby Saver or Designated Safe Haven Provider and provided the Infant shows no signs of Abuse in terms of section 316(2)(c).
316(5) Voluntary Provision of Information—A Relinquishing Person has the right to voluntarily disclose Personal Information of the Infant or itself on relinquishing an Infant in a Baby Saver or to a Designated Safe Haven Provider. Such Personal Information of the Relinquishing Person and/or the Infant will be kept confidential in accordance with the provisions of the Protection of Personal Information Act and such information relating to the Infant may only be used to provide the necessary medical treatment to the Infant;
316(6) Termination of Parental Responsibilities and Rights—the parental responsibilities and rights of Parents will be terminated once the 90 days’ time period has expired in terms of section 316(7) and in terms of Reg. 56(2)(b)(ii) of the Children’s Act 38 of 2005.
316(7) Reclaiming a child—a Relinquishing Person who has safely relinquished an Infant through a Baby Saver or to a Designated Safe Haven Provider may decide to reclaim the Infant within and no later than 90 days from the date on which an advertisement is placed in the local newspaper to notify other interested parties of the relinquishment of the Infant, failing which the Infant will be legally adoptable.
316(8) Reunification—A Parent with parental responsibilities or the Legal Guardian of the Infant shall be reunified with the Infant that was safely relinquished in terms of section 316(2), on success of the prescribed Reunification process.
316(9) Proof—upon reclaiming a Child or Infant the Parent or Legal Guardian wishing to reclaim the Child or Infant will have to provide proof that he or she is the Parent or Legal Guardian, this will be at the discretion of the Child Protection Organisation. Proof may be in the form of but not limited to—
a. A bracelet that was acquired from the Baby Saver or from the Designated Safe Haven Provider where relevant; or
b. DNA testing; or
c. Providing a photo of the Infant; or
d. Clinic card; or
e. Any other relevant information that provides sufficient proof that he or she is the Parent or the Legal Guardian.
316(10) The Minister must publish regulations prescribing:
a) the role, purpose and related matters of the national oversight body appointed by the Department to regulate Baby Savers and Designated Safe Haven Providers to ensure compliance with the Act;
b) The intake protocols in respect of the use of Baby Savers and Designated Safe Havens;
c) The minimum safety and design requirements that must be adhered to in relation to Baby Savers and safety standards for Designated Safe Havens;
d) The investigation and reporting of Abuse of an Infant;
e) The process to be followed by a Relinquishing Person who seeks to reclaim an Infant following Safe Relinquishment in terms of section 316(2); and
f) The Reunification process.
316(11) Commencement Provision—Section 316(1) to section 316(9) will come into operation on a date fixed by the Minister by proclamation in the Gazette in respect of Baby Savers and Designated Baby Save Haven Providers respectively.
316(12) Commencement Provision—The above section 316 in respect of Designated Baby Safe Haven Providers will only come into effect once regulations have been published in respect thereof.”
“The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity. This concept of human life is at the center (sic) of our constitutional values. The Constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society.”80 76 Hubbard “Baby-dumping and infanticide” 2008 Gender Research and Advocacy Project of the Legal Assistance Centre Windhoek, Namibia 1 6;
of All Forms of Discrimination Against Women published in 1995 to the United Nations Committee, conceded that “infanticide is a significant problem in Namibia”; Rosenberg (n 52) 749.The Namibian delegation, while presenting the report on the Elimination
lockdown).44868, RG 1131, GoN 632 16 Jul 2021 (applicable to adjusted level 4 of the
“The [online court] thus represents the first attempt to move English civil justice from a structural perspective—which is to say in terms of court and procedural design—beyond what could be described as the adjudicative paradigm: one that understands the court’s role as being to manage claims to a trial on their substantive merits. While it is true to say that since the Woolf Reforms … there has been an increased emphasis on the idea that the primary aim of process should be to facilitate settlement, and that procedure should be managed to resolution, howsoever that is achieved, rather than trial and adjudication, that has not previously been embedded in the structure of either a civil court or civil process. The [online court] takes that step.”38 37 See (n 34) 98.
“Steps like mediation may augment, but do not transform, traditional public justice processes. The add-on approach lacks the benefits of gradually escalating intensity and resources. It also lacks the seamlessness of an end-to-end system. For example, using current public justice processes, the parties would begin by framing their disputes adversarially in their pleadings, setting out explicitly contrasting rights-based positions, bolstered by legal arguments demonstrating why they should triumph over every opponent. If mediation is then offered as an add-on process, the parties would have to pivot from the adversarial approach and engage in an internet-based negotiation aimed at identifying common ground and possible concessions. It is unrealistic to expect parties to detach quickly from the initial adversarial, rights-based position when they are suddenly in an added-on mediation. Yet the current civil justice system drives parties to adopt and document deeply entrenched positions before any collaborative step is taken.”40 39 Salter and Thompson “Public-centered civil justice redesign: a case study of the British Columbia Civil Resolution Tribunal” 2016 McGill Disp Resol 113 117.
that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose”. See also Woolworths (Pty) Ltd v Whitehead (Women’s Legal Centre Trust Intervening) 2000 3 SA 529 (LAC); Hoffman v South African Airways 2001 1 SA 1 (CC); Independent Municipal and Allied Workers Union v City of Cape Town 2005 26 ILJ 1404 (LC); Dlamini v Green Four Security 2006 27 Industrial Law Journal 2098 (LC).must be rationally connected to the performance of the job. This means
“Every citizen is called upon to make sacrifices to their fundamental rights entrenched in the Constitution. They are called upon to do so in the name of ‘the greater good’, the spirit of ‘ubuntu’ and they are called upon to do so in ways that impact on their livelihoods, their way of life and their economic security and freedom. Every citizen of this country needs to play his/her part in stemming the tide of what can only be regarded as an insidious and relentless pandemic.”
“Thus, while the initial concern and response to the virus was largely and understandably a public health one, with time the impact of the virus on issues such as the economic survival of nations and their citizens, and the simple ability to live a meaningful and decent life, has come sharply into focus. The ability of governments, in particular those in the developing world, to respond holistically to the needs and well-being of their citizens has come under increased pressure. This has been exacerbated by the inevitable recognition over time that the virus will be with us for some time and that a cure in the form of a vaccine is still somewhere in the future.”83 82 Karim and Kruger (n 74) 552.
“We must not lose sight of the fact that rights enshrined in the Bill of Rights must be protected and may not be unjustifiably infringed. It is for the legislature to ensure that, when necessary, guidance is provided as to when limitation of rights will be justifiable. It is therefore not ordinarily sufficient for the legislature merely to say that discretionary powers that may be exercised in a manner that could limit rights should be read in a manner consistent with the Constitution in the light of the Constitutional obligations placed on such officials to respect the Constitution. Such an approach would often not promote the spirit, purport and objects of the Bill of Rights. Guidance will often be required to ensure that the Constitution takes root in the daily practice of governance. Where necessary, such guidance must be given. Guidance could be provided either in the legislation itself, or where appropriate by a legislative requirement that delegated legislation be properly enacted by a competent authority.”99 98 Case no. 22311/2020 (ZAGPPHC) (unreported) 168.
law being a “practical discipline”;
law as a form of humanities; and
law as a form of social sciences.
208 212–213, in this context a behavioral approach to studying indigenous law may classify the researcher as a legal realist.of Southern Africa
“Both law and legal advocacy necessarily rest on assumptions about human motivation and behavio[u]r. Many of those assumptions are wrong. Just as scientific experimentation determined that Aristotle’s physics did not accurately describe the behavio[u]r of objects, modern psychology and other social and behavio[u]ral sciences have determined that many common understandings of human behavio[u]r are, at the very least, incomplete”.
“… all research conducted in South Africa or by a responsible party domiciled in South Africa, and which uses (collects, processes or stores) personal information as defined under POPIA as pa[r]t of the research process. The Code [of Conduct] will pertain to all research activities in South Africa that ordinarily undergo prior and independent ethics review, that follow a recognised scientific methodology or system of analysis, and that aim to publish the research in contribution to the respective field of stud[y]”.
“this Code is relevant to research—whether basic or applied—in any discipline including, but not limited to, natural sciences, engineering and technology, medical and health sciences, social sciences, education, management, economics, theology, law, and the humanities and which: