Globally, juvenile offender diversion and rehabilitation, as opposed to retribution, are the norm. It is rooted within restorative justice approaches, which strive to ensure their responsibility and accountability for crimes committed. In 1997, the South African Law Reform Commission highlighted that a restorative justice approach was of great importance to restore legitimacy to the criminal justice system and to assist in the fight against crime. Three years later it was proposed that, in addition to traditional punitive measures, restorative justice measures should be considered in all criminal cases. Yet, little progress ensued outside the child justice system. In this paper we argue that the gap existing between the child and adult justice systems could not be justified and should be narrowed, and that the taking of responsibility, via a diversion option, should also be encouraged amongst adult offenders. The benefits and challenges of such practice for both offenders and victims are explored, whereafter national and selected international (e.g. Victoria and Queensland in Australia) procedural avenues towards adult offender accountability are investigated. It is proposed that adult diversion should be actively promoted and that legislation in this regard be considered. Extending legislated diversion mechanisms to adult offenders will not only broaden the use of restorative justice principles within the South African criminal justice landscape, but will, when offenders participate, contribute to their dignity and well-being and thereby underscores a core constitutional value. Finally, by showing accountability, they will demonstrate respect for the human rights and fundamental freedoms of others. This aspect of restorative justice targeting adult diversion will serve to strengthen existing focus on rehabilitation during incarceration and Throughcare programming on release into the community.
This case discussion examines the significance and application of the distinction between rights disputes and interests disputes in labour law, using the recent ruling in SACCAWU v Phala (JA136/23) [2024] ZALAC 62 (27 November 2024) (Woolworths case) as a focal point. The study traces how this fundamental dichotomy has shaped labour relations development from the Industrial Court era to the current Labour Relations Act framework. It demonstrates how the Woolworths case exemplifies this distinction’s continuing utility and growing complexity. The case originated from Woolworths’ strategic shift from full-time to flexi-time employment, leading to disputed retrenchments and ultimately a Constitutional Court ruling of unfair dismissal. The subsequent Labour Appeal Court judgment mainly illuminates how modern workplace disputes often resist simple categorisation as either rights or interests disputes. The analysis reveals that while the Labour Relations Act does not explicitly codify the distinction, it effectively operationalises it through its regulatory framework and dispute-resolution mechanisms. The research concludes that this distinction remains valuable for determining appropriate dispute resolution methods but requires increasingly nuanced application in contemporary contexts. It furthermore recommends more explicit legislative guidance with a view on addressing hybrid disputes and suggests developing specialised mechanisms for cases that contain elements of both rights and interests disputes.
Technology pervades every aspect of modern-day life, and the legal landscape is no exception. A prime example is the issue of electronic wills. Being excluded from the ambit of the Electronic Communications and Transactions Act 25 of 2002, e-wills are currently a grey area in South Africa, with no laws governing them. Until this changes, a proper understanding of section 2(3) of the Wills Act 7 of 1953 – the so-called condonation provision – offers a way to accommodate electronic wills. Yet section 2(3) faces certain challenges relating to its interpretation and application, particularly as it pertains to electronic documents. This contribution presents an overview of MacDonald, Van der Merwe and Dryden three instances where the South African courts were called upon to adjudicate matters involving the condonation of electronic documents. Unfortunately, these judgments did little in the way of providing clarity, and Dryden, in particular, dashed all hope of certainty surrounding the condonation of electronic documents. In search of solutions, the paper examines Faber’s proposed act-based model as well as the current approach in Australia. The act-based model is suggested as a way to crystallise what our courts should be focusing on in adjudicating condonation applications, namely the act of testation, which comprises the written manifestation of the testator’s dispositive intention along with animus testandi. The two-part intention requirement in Australian law offers solid substantiation for this. Another lesson to be drawn from the Australian approach is the need for a broad statutory definition of “document” that includes various electronic forms, such as computer files, messages on mobile phones, and emails. This flexibility would better meet society’s evolving needs in a digital era and would help our courts establish the scope of application of the condonation provision. If South African law wishes to keep pace with international e-will trends, it will have to adapt and make more adequate provision forelectronic wills.
The rapid adoption of Non-Fungible Tokens (NFTs) has revolutionised the digital art and collectibles markets. NFTs present novel opportunities for creators and investors alike. However, with such opportunities also comes the risk of money laundering through NFTs. The South African digital art market has not been spared from the rising phenomenon of NFTs. This rising phenomenon has brought with it questions regarding whether the South African anti-money laundering (AML) regime can adequately counter the challenge of money laundering through NFTs. This is particularly so if one considers that, generally, the AML regulatory framework for NFTs is still nascent, not only in South Africa, but also globally. Thus, this contribution comparatively examines the AML regulation of NFTs in South Africa to establish the adequacy and efficacy of the country’s AML regime. The paper concludes that while NFTs are still new, they can be dealt with under the blanket regulation for crypto assets and in specific use cases, AML regulations may be applied to them.
The majority of South Africans felt relieved when Finance Minister, Enoch Godongwana, did not announce any noticeable tax hikes during his annual National Budget Speech on 21 February 2024. Nevertheless, the same South Africans were probably in a worse financial situation after the fact, due to a lesser-known tax principle called “tax bracket creep”. This hidden tax increase in the 2024 Budget Speech was the absence of any changes to the progressive tax rate table for individuals to account for inflation. Furthermore, the Minister did not increase the tax rebates for individual taxpayers from the rates set in the previous year – South African taxpayers were thus doubly pressed. If a person received a salary increase tied to inflation, they may have ended up worse off, because their higher taxable income may have pushed them into a higher tax bracket and resulted in them being taxed at a higher rate due to tax bracket creep. Simultaneously, the taxpayer’s tax rebate was also not adjusted upward to account for inflation. The phenomenon of tax bracket creep is recognised globally but remains unregulated in numerous countries. I believe it presents a simple way for governments to collect more taxes subtly. It is solely the government’s decision whether or not to adjust the South African progressive tax rate table for inflation, as there is no automatic link between the tax rate table and inflation. In my paper, I analyse the principle of tax bracket creep, and also consider the global situation regarding the regulations required to address such a tax bracket creep (such as automatic tax indexation of the personal income tax table). I further consider if regulations or relief can be put into place in South Africa to address the detriment of the tax bracket creep to the South African individual taxpayer.
Prior to the passing of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, the legal position was that a civil marriage trumped any customary marriage. Entering into a civil marriage had two major effects, namely it dissolved any existing customary marriage, and it prevented a man from entering into any subsequent marriage with another woman. However, post-1988, the legal position was slightly altered. An earlier civil or customary marriage trumped any subsequent marriage. A man who was a party to a customary marriage could no longer enter into a civil marriage with another woman; that civil marriage would be invalid. This note discusses the case of the late Zulu king, Goodwill Zwelithini, and his various consorts. The first marriage in 1969 was a civil marriage. The subsequent marriages were customary marriages. As pointed out earlier, strictly speaking in law, these subsequent marriages were invalid owing to the earlier civil marriage to the first wife. This position remained the same in 1988. It must be borne in mind that the invalidity in question came about because of past inequality. South Africa is now a constitutional state that prides itself as the epitome of basic human rights, including equality and human dignity. It would be hypocritical to espouse basic human rights in the Constitution, while perpetuating past inequality in the context of the above customary marriages. In the case under present discussion, Zulu v Mathe, the court missed an opportunity to pronounce on the validity of customary marriages that were invalidated, due to inequality. Arguably, the court also missed the opportunity to pronounce on the validity of the late King’s last customary marriage, which was entered into in 2014, many years after the passing of the Recognition of Customary Marriages Act 120 of 1998. This case note is a critical discussion of this aspect of the judgment.
This paper explores gender equality as it relates to abandonment, an offence regulated by the Children’s Act. This crime has common law origins and was intended to allow for the prosecution of offenders who abandoned infants. More women as mothers have been legally pursued for this crime than any other category of persons designated in statute, and if the mother cannot be traced, no arrest is made. The effect is the silencing of women on matters related to their maternity, particularly for mothers in relationships shaped by abuse and violence. This analysis interrogates the practice of abandonment as contradictory to the developing jurisprudence of gender equality. It explores the continuum of violence, from apartheid South Africa to the current constitutional dispensation, illuminating the complicity of criminal law in abandonment. The legal pursuit of mothers is constructed around moral blame, illustrating criminal law’s difficulty in conceptualising equality. This paper proposes a complementary legal framework on the existing jurisprudence of equality that specifically recognises maternity. It calls for a Constitution that is responsive to women’s needs, by including constitutional maternal clauses, thereby providing distinct support and protection to women as mothers.
Artificial Intelligence (AI), particularly Generative AI (GAI), is transforming industries, including the legal profession. While AI enhances legal research and document automation, its unverified use presents serious ethical and professional risks, as seen in recent South African court cases. The case of Mavundla v MEC: Department of Co-Operative Government and Traditional Affairs KwaZulu-Natal and Others highlights the dangers of relying on AI-generated legal research without verification, reinforcing the duty of legal practitioners to ensure the accuracy and integrity of their work. This note argues that these ethical and professional responsibilities extend to law students as future legal practitioners and must be embedded in legal education. However, many educational institutions lack clear policies on AI use, leaving students uncertain about responsible engagement with these technologies. Rather than restricting AI use, law schools must integrate AI literacy into curricula, equipping students with the skills to critically evaluate AI-generated content and uphold ethical standards. By cultivating responsible AI engagement, legal education can ensure that future legal professionals navigate an increasingly AI-driven legal profession with competence and integrity.
The Criminal Procedure Act 51 of 1977 provides for private prosecution and the process to be followed in instituting such proceedings. While private prosecutions are rare in South Africa, the few prosecutions that were instituted reveal lax mechanisms that allow for abuse or potential abuse of the process. The key problem, it is submitted, is the ease with which such a prosecution may be instituted and the apparent lack of judicial oversight at the beginning of the process. To illustrate the significance of this lack of judicial oversight, the South African approach is compared with that of the United Kingdom where private prosecution may only be instituted by application in a magistrates’ court, thereby enabling a judicial officer to assess the case before it commences. Following a discussion on the implications of the lack of judicial oversight, it is recommended that mechanisms be introduced to ensure proper judicial oversight right at the beginning of the process as the current approach that requires of the accused persons to approach the court after the process has been instituted is a fertile ground for abuse of the process. It is expressly recommended that the clerk of the court should be required and equipped to conduct a preliminary assessment regarding the presence or otherwise of the jurisdictional requirements, especially those administrative in nature. In terms of the recommendation, the registrar is excluded because the recommendation proposes that the process should commence in the magistrates’ court. As an additional measure, it is recommended that a judicial officer should assess the prosecution for its soundness in law as well as for compliance with the substantive jurisdictional requirements. Put differently, it is suggested that private prosecution in South Africa should commence by application in the magistrates’ court in a manner similar to the process in the United Kingdom.
This paper argues for an update to the South African Schools Act to include the regulation of learner-based cyberbullying, rather than relying on piecemeal school policies. Although school codes of conduct for learners can regulate cyberbullying, currently there is no clear legislative approach to regulate it. Bullying, regrettably, is a common and long-standing problem that is typically associated with schoolchildren. This conduct may take many forms including physical, verbal and psychological aggression. As technology advanced, bullying migrated online and became known as “online bullying” or “cyberbullying”. Cyberbullying poses a new challenge to its regulation, where schools formerly regulated traditional bullying. Due to its ongoing nature, cyberbullying can affect children at any time and any place, unlike traditional bullying, which is usually confined to the school grounds or requires physical interaction. The primary purpose of this research is to determine whether schools have the ability to regulate cyberbullying. In countries such as the United States, cyberbullying has been met with mixed responses and school policies have been struck down for unduly encroaching on learners’ human rights. Laws regulating cyberbullying therefore need to be carefully drafted to avoid constitutional scrutiny. A recent introduction of a Social Media Charter by the South African Human Rights Commission attempts to address cyberbullying and other online harms. However, this document is not “hard” law and only offers suggestions in addressing cyberbullying.
An adoption can be legally effected under customary law. The motive(s) or reason(s)1 behind customary law adoption are multifaceted. Social anthropologists have identified several reasons for the adoption of children in Africa, including childlessness and providing for orphans and abandoned children. Customary law adoption should not be dismissed for being conducted only to save a family from the termination of its lineage and not having regard for a child’s best interests (one should of course remain cognisant of the fact that the matter of a child’s best interests involves a wholly distinct matter in own right). Still, though African children “belong” to an extended family and are cared for within such a family, the reality is that many children need a home. It is, therefore, unfortunate that, for various reasons, the specifics pertaining to the validity requirements for customary law adoptions are uncertain. The Children’s Act also does not mention customary law adoptions at all. The continued existence of uncertainties in this respect has led to the piecemeal recognition of customary law adoptions and interpreting, viewing and, in some instances, branding them as de facto, leading to the overall devaluing of the status of customary law. However, the latter is not the focus of the discussion here. Instead, this paper conceptualises customary law adoptions by critically discussing the reasons behind them and unravelling their validity requirements as a step towards considering future law reform in the interest of legal certainty. An analysis of case law sheds light on the requirements, with some reference to the Children’s Act. The generic requirements of a valid customary law adoption are confirmed as an adoption agreement between the families and the publication of the adoption, whilst reporting the adoption to a traditional leader is established as a relative requirement (as opposed to being obligatory). Yet, many practical reasons exist (such as keeping children safe) for reporting and keeping a record of customary law adoptions as a validity requirement. Consequently, the specifics pertaining to customary law adoption agreements, publication, reporting, and record-keeping must not be uncertain.
State capture emerged as a critical public issue in South Africa around 2016, driven largely by the work of then Public Protector Thuli Madonsela, alongside investigative journalists and whistleblowers. As a form of systemic, high-level corruption, state capture has had profound consequences undermining governance, weakening public institutions, de-stabilising the economy, and eroding public trust. The South African case is particularly notable for its scale and the depth of institutional damage. Major state owned enterprises, including Eskom, South African Airways, and the Passenger Rail Agency of South Africa, were systematically looted. The looting of Eskom, for instance, resulted in persistent electricity outages that hampered economic activity and daily life, and repeated government bailouts to keep South African Airways afloat. The crisis culminated in the resignation of former President Jacob Zuma and the establishment of the Zondo Commission, which in 2022 released a landmark report implicating numerous high-profile politicians and other role players. Despite the Zondo Commission’s extensive findings and the subsequent internal disciplinary actions by the African National Congress against numerous high-profile politicians, with a few being expelled, prosecutions of the majority of individuals implicated remain nonexistent. To date, the only case brought forward was the first state capture prosecution in 2023, which ended unsuccessfully for the state, resulting in a discharge. Promisingly, the discharge was successfully overturned on appeal in 2025, and the case is set for a retrial. Meanwhile, the long-standing and troubled prosecution of Jacob Zuma continues to remain stalled. Additionally, efforts to extradite the Gupta brothers, alleged central figures in the capture network, have failed. This paper presents a qualitative doctrinal study that investigates the underlying reasons for the lack of successful state capture prosecutions. Initial findings indicate South Africa’s investigative agencies and the National Prosecuting Authority have failed to develop strong, trial-ready cases, reflecting deeper systemic and institutional deficiencies. This paper offers a rare exploration of why state capture prosecutions in South Africa have largely failed to successfully materialise. By shedding light on these developments, the paper contributes new insight into the challenges of prosecuting economic crimes. It identifies key weaknesses in South Africa’s investigative and prosecutorial processes that have impeded effective action against those involved in state capture.
In South Africa, the requirements for a valid marriage are well established in both common law and statutory law, rendering the process relatively straightforward. However, the validity of customary marriages remains less clear due to the uncodified nature of customary law. Although the Recognition of Customary Marriages Act 120 of 1998 has introduced some codification, section 3 remains open-ended, creating interpretative uncertainty and legal complexity. This ambiguity has allowed varying understandings of what constitutes a valid customary marriage, which some parties may exploit to evade marital obligations. This note revisits the essential requirements (essentialia) for a valid customary marriage by analysing the Recognition of Customary Marriages Act and the recent judgment in B.C.G v S.J.M. The court held that a written lobola contract is not essential for validity if other customary rites have been fulfilled. Importantly, where the written contract cannot be located, the existence of the marriage may still be proven through oral evidence, including testimonies from the spouses and witnesses to the negotiations or celebration. The judgment underscores the critical role of judicial interpretation in disputes concerning the validity of customary marriages and highlights the ongoing need for customary law to evolve in harmony with constitutional principles.
On 10 October 2023, the Constitutional Court passed judgement on the interesting question relating to the admissibility of evidence at a criminal trial. An employee testified during her disciplinary hearing called by her employer. The issue to be decided was whether evidence stemming from her testimony was subsequently admissible at her criminal hearing. The pressing question to be decided by the court was whether the admissibility of her testimony would impact her section 35 constitutional rights. In this contribution, we present a detailed analysis of the Liebenberg decision.
South Africa’s Constitution is hailed for the extensive, fully justiciable socio-economic rights in its Bill of Rights. In the context of apartheid history and the travaux préparatoires of the interim Constitution of 1993, these rights created a new social contract between the state and the electorate. We argue that this contract imposes a duty on the state to efficiently provide basic amenities as the foundation for redressing historical economic inequalities. However, 30 years after apartheid ended, the laudable promises of the social contract have not materialised. While many non-legal factors account for this situation, we argue that lacklustre judicial review plays a considerable role. Using literature review and critical analysis of six purposively selected decisions of the Constitutional Court on socio-economic rights, we reveal how judges use legal rhetoric to defer unduly to the executive branch of government. We posit that judicial deference and its accompanying rhetoric hamper the socio-economic revolution envisaged by the Constitution in South Africa.
Corruption continues to be a pandemic. Over centuries, it has managed to evolve in its perpetration, spread worldwide and immerse itself within the daily lives of society. Its ability to evolve and take different forms, has made it impossible to encapsulate into one watertight definition. Despite some sentiments that corruption may be acceptable for economic growth, corruption undermines the rule of law, the equal distribution of resources and services, and weakens the state institutions. No country is immune to corruption. In South Africa, corruption perpetrated through bribery has become a way of life. Bribery in the public sector involves members of a society offering valuable and/or monetary gifts to public officials. The continued prevalence of corruption in South Africa is worsened by both members of society and public officials. Through socio-legal perspective, the paper will examine selected sectors wherein bribery is prevalent. These sectors are selected due to exploitation by public officials or the need for service delivery from public officials. The paper will further delineate the overall effects and available anti-corruption mechanisms in South Africa. Lastly, the paper examines whether corruption, perpetrated through bribery, is a national norm. In its concluding remarks, the paper argues that society and public officials are equal duty bearers in the fight against corruption.
The right to basic education is a fundamental human right, the realisation of which is dependent on the holistic fulfilment of all educational needs. The study reflects on the interpretation of basic education by the South African legislation, supported by regional and international treaties and case law. The analysis is anchored on the rights-based approach, as prescribed by the Committee on the Rights of the Child, General Comment 13. The study adopts a qualitative methodology which outlines thematic education challenges faced by children in South Africa, especially in the rural areas. These issues include poor schooling infrastructure, lack of water and sanitation services, discrimination, inclusive education, and harmful cultural practices. Thus, considering the role of various stakeholders in promoting basic education, the study recommends that concerted efforts be made to enhance engagement with local communities and civil society, and advocates for effective accountability mechanisms on implementing education policies in South Africa
The Constitution calls for past injustices to be corrected and for the establishment of a socially just society. This call is rooted in both the vision of transformative constitutionalis and the government’s constitutional duty to promote sustainable development.3 South Africa’s commitment to establishing a society based on social justice translates into a mandate that is government’s responsibility to implement. As the South African government comprises three distinct, independent, and interrelated spheres (national, provincial, and local),4 as well as organs of state (for purposes of this article, public schools),5 this mandate automatically becomes a shared mandate, which should be carried out within a cooperative framework.
Fiduciary law as a separate legal discipline has not been under the spotlight within a South African context. As it is often limited to its association with trustees and company directors, fiduciary law has been under-analysed and not recognized as a distinctive body of law. In this article, the position of fiduciary law is regarded as within the broader context of the private-law landscape, considering both contractual and relationship theories. Its application in a trust-law context is used to illustrate the practical value of fiduciary law. The potential role of public policy as well as the impact of the mixed-law tradition are discussed, emphasizing the importance of the responsible development of fiduciary law. This development relies on a sound theoretical understanding of its objectives and intended results. Additionally, it necessitates the identification and application of an officially recognized normative assessment for determining the parameters of the fiduciary relationship. A few potential common factors for determining the nature, origin, and reach, of fiduciary law are identified, with the intention of stimulating the debate and further research. These factors include the purpose of the fiduciary concept, the undertaking by the functionary, the legal source of the individual’s appointment, and aspects such as independence, discretion, duties, capacity, and assessment.
In the first part of this article, the author analysed the development and role of expert evidence in civil matters in the South African law (Bekker 2023:160-178). In the second part of this article, the author conducts an in-depth discussion of the position in England, Wales, andAustralia in relation to the application of expert witness testimony in civil matters. It is argued that, although there has been considerable progress in terms of the presentation of expert evidence in civil litigation in the South African law, a number of problematic aspects still need to be addressed. It is recommended that the Rules Board should intervene and that the rules relating to the presentation of expert evidence in civil matters should be amended in its entirety. In this regard, valuable insight can be gained from the English and Australian experiences.
