This article considers whether the Constitution of the Republic of South Africa, 1996 has been informally changed by the courts through constitutional interpretation. To do so, I synthesise the existing scholarship on informal constitutional change to provide a working definition of the concept and contrast it with formal constitutional change. It then interrogates the challenges that arise from informal constitutional change by courts, including the question of the legitimacy or constitutionality of such change. To this end, the article develops an analytical framework for identifying both informal and unconstitutional constitutional change. Finally, it offers one likely instance of both informal and unconstitutional constitutional change by courts in South African law.
This note examines Zilwa v MEC for Transport and Public Works, a Western Cape High Court judgment that declared unlawful a warrantless arrest and detention for excessive speeding. While the judgment reaffirms and emphasises the constitutional sanctity of the right to liberty, it seems to depart from the wording of s 40(1)(b) of the Criminal Procedure Act 51 of 1977, read with Schedule 1 and s 89 of the National Road Traffic Act 93 of 1996. Assessing the Zilwa judgment against the Supreme Court of Appeal decision in Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) suggests that the court may have taken a route that sits uncomfortably with precedent. The court may also have created a form of operational paralysis or, at least, added another administrative layer in traffic law enforcement.
This article examines the role of wrong fulness as a conceptual basis for liability in delict, focusing largely on cases of omissions and pure economic loss. I argue that the wrong fulness enquiry is best understood not as a single undifferentiated policy judgment, but as a structured three-step enquiry. First, the court asks whether the defendant owed the plaintiff a recognised legal duty and whether that duty was breached. If no such duty exists, the enquiry turns to whether the legal convictions of the community justify recognising a new general duty of that kind. Thirdly, and crucially, where such a duty exists and was breached, the court must determine whether those legal convictions warrant the imposition of delictual liability in the circumstances. On this account, breach of duty does not automatically entail wrong fulness: the first and third steps perform distinct tasks and should never be collapsed. I further argue that the content of the duty at step 1 should not be framed as a duty not to cause harm negligently, but rather as a strict duty to refrain from particular harm-causing conduct, leaving questions of fault to be addressed primarily at the stage of imposing liability.
South Africa is moving toward digital payments, and a retail central bank digital currency (‘CBDC’) could reduce cash reliance and promote financial inclusion. Using the International Monetary Fund’s REDI framework (an acronym for Regulation, Education, Design & Deployment and Incentives), a retail CBDC could encourage broader access to digital payments and support a more inclusive financial sector in South Africa. A retail CBDC could tackle mistrust of financial institutions, low financial (and digital) literacy, inadequate infrastructure, and high transaction costs. Regulation would update laws for safe use; education would build trust and literacy, especially in low-income areas; design and deployment would ensure secure, user-friendly, interoperable and offline-accessible systems with phased rollouts and low fees; and incentives such as cashback, discounts or tax breaks could encourage adoption amongst consumers and merchants. While the South African Reserve Bank considers a retail CBDC feasible, it currently prioritises modernising the payments system, supporting fintech and exploring wholesale applications. We conclude that modernisation is the essential first step, creating a secure, adaptable foundation, while a REDI-aligned retail CBDC could later complement cash, reduce reliance on physical currency and expand access to digital financial services, fostering a more inclusive financial sector for South African consumers.
