UKZN STUDENT LAW REVIEW
DEVELOPING WRITING, DEVELOPING LAW
First Issue of the UKZN Student Law Review
Message from the Dean: School of Law
Consonant with the mission of the School of Law to produce graduates with the skills, knowledge and values needed to perform successfully in their professions and to become leaders and visionaries in the broader society, it is my singular honour to introduce the UKZN Student Law Review.
The UKZN Student Law Review is a tangible symbol of students realising their full potential. It provides a platform to interrogate and analyse complexities in the law and to make a valuable contribution to the production of knowledge to enhance the understanding and application of law. It is designed to equip students with the skills to critically engage with legal theory as well as the interpretation thereof in case law, and to consider the implications of alternative perspectives. In addition, it enables students to comment constructively on the sustainability and feasibility of court decisions. Moreover, it creates an environment that is conducive to students honing their writing skills and developing them to an academic standard, comparable to that of established authors.
Accordingly, it is with immense pride that I offer my unreserved support for the UKZN Student Law Review and endorse the initiative by the UKZN law students who have undertaken to produce the Law Review.
Professor Managay Reddi
Dean and Head of School
School of Law
Message from the Managing Editor
Welcome to the University of KwaZulu-Natal Student Law Review! It is to date the most ambitious project undertaken by our students, and what an issue this is! It lays a solid foundation for the showcasing of our student contributors’ research and writing efforts. It establishes a new platform for unleashing the enormous creative talent we have in the School of Law. And it has all been accomplished by our students – the dedicated team of editors, reviewers and contributors.
Several of our colleagues on the academic staff provided guidance and inspiration for these efforts. Special mention must be made of the sterling role of Ms Lee Stone, who guided this project from inception and provided the foundation on which this impressive debut edition stands. She was instrumental in piloting this project through the School of Law, and proved to be a valued adviser and friend to the editorial team in their initial efforts. Sadly, Ms Stone leaves UKZN at the end of April, but will always remain a ‘proud parent’ of the Student Law Review!
We invite you to read and enjoy this edition, and to contribute actively in making it a huge success.
Professor Yousuf Vawda
Managing Editor
Message from the Editor-in-Chief
The University of KwaZulu-Natal Student Law Review (UKZN SLR) is a student led initiative that was started in 2012 by 6 students at the Howard College Campus. 5 students from the Pietermaritzburg Campus joined in, making the current student editorial team of 11 members. The editorial team is made up of students across all levels of study. The student management and editorial team is closely assisted by the Managing Editor, who is an academic member of staff. Advising and guiding the student editors in the running and management of the UKZN SLR is a team of 10 academic staff members who together form the Academic Staff Advisory Board.
The UKZN Student Law Review accepts contributions from undergraduate and postgraduate law students at the Pietermaritzburg and Howard College campuses, alumni and academic members of staff. Contributions are accepted in the form of articles, case notes, comments and book reviews. The UKZN SLR will publish two issues per year, one in each semester. Contributions will also be published online on the UKZN SLR website. Through online publication we intend to conform to the widely growing digital trend in academic publishing, the rationale for us being to reach a wider audience through open access. At this foundational level, we have decided to limit our catchment areas for contributors to current students, alumni and academic members of staff in the School of Law at UKZN. It is our goal that eventually we will be able to receive contributions from students at other law schools, those serving articles, and even practising attorneys.
The inspiration behind the launch of the UKZN SLR was the desire to create in our institution an outlet for the academic views and writing creativity of students within our Law School. Publishing in the mainstream academic journals is highly competitive and students usually find themselves excluded for the simple reason that they do not have the necessary experience and base upon which to write for mainstream publishing. The UKZN SLR seeks to provide that base and foundation, eventually launching students into mainstream publishing. Law is a writing profession and it is our aim that through the UKZN SLR, students will learn independent research and writing skills that will prove valuable in their careers. The UKZN SLR will provide a forum for critical thinking, argument and debate, and through this, students will be able to contribute to the understanding of the law and to legal development. Ultimately, this is our way of contributing to the University’s research output, noting that UKZN is a research-led institution.
The UKZN SLR will not only benefit students, but will also make our Law School more competitive, positioning it among many leading law schools both in and out of South Africa that run successful student journals and reviews. The School of Law is currently moving towards increasing its postgraduate enrolment and a significant number of our postgraduate students are carrying out research in various areas of law. In addition to the refurbishment and modernising of the Centre for Postgraduate Legal Studies at both the Howard College and Pietermaritzburg campuses, the School of Law also houses the country’s only specialised Unit for Maritime Law and Maritime Studies. Contributions sourced from this environment may prove to provide publications unique to this university in such areas of law, nationally.
Quality production is a cornerstone of the UKZN SLR. This will be achieved through a two-level review process and a rigorous editing process by our team of editors. Monitoring and evaluation will be an on-going exercise to ensure that we remain relevant in our approach and to ensure that our objectives are met. This monitoring and evaluation will inform our dynamism in developing strategies that best work to achieve our objectives and goals.
It is with great pleasure that we introduce the University of KwaZulu-Natal Student Law Review, the 1st student journal in the KwaZulu-Natal region.
Musa Kika
Editor-in-Chief
Editor’s Note
It is with great excitement that the first edition of the UKZN Student Law Review is produced. The UKZN Student Law Review is the epitome of the pursuit of excellence upon which the School of Law prides itself. It represents the commitment, dedication and innovation of a cohort of Law students who are concerned with the creation of a platform for Law students to develop their research and writing skills so as to enhance their career prospects both in public and private practice.
The first edition of the Law Review is released at an interesting time in the context of legal education in South Africa: the Minister of Higher Education is contemplating extending the LLB Degree from a four year to a five year programme. Simultaneously, the South African Law Deans Association has embarked on a process of evaluating the structure and content of the Law Degree with a view to taking remedial action should it be shown that students are not adequately acquiring generic skill-sets necessary for the practice of law. Added to this are the criticisms levelled against the present legal qualification by the judiciary, who believes that graduates are out of their depth and lack communication skills (LegalBrief 13/07/2013). For this reason, the establishment of the UKZN Student Law Review has occurred cognisant of these concerns and the editors have thus arranged a number of workshops aimed at enhancing prospective authors’ research methods and training them to write more effectively, in accordance with academic expectations. The result is empowered students who are the architects of their own destiny and who refuse to perpetuate the self-fulfilling prophecy that they are subject to limitations in light of the apparent difficulties associated with the LLB Degree. As such, the UKZN Student Law Review is intended to be mutually reinforcing for both the law students and the profession alike.
Given that the UKZN Student Law Review does not call for papers based on any specific themes, we were delighted to have received papers covering virtually the full spectrum of the discipline of law. Consonant with the Law School’s rich history in the fight against apartheid and the significant role that members of the School played in ushering in the new Constitution and thereby, the democratic dispensation, it is no surprise that substantial attention was paid to constitutional issues. From the outset, the papers confront the contestation between politics and art in the context of the progressive interpretations of freedom of expression and human dignity; moving on to the Constitutional Court’s expansive approach to section 26(3) of the Constitution governing the right not to be evicted in the absence of a court order, juxtaposed with the ambitious project of infusing the concept of Ubuntu into the private realm through the proposed development of the law of contract to bring it in line with the spirit, purport and objectives of the Constitution. Against this backdrop, the question of the rights of disabled people within tertiary education environments has also been explored. Sports law and refugee law also benefitted from thought-provoking and intellectually rigorous critique, sharing the common theme of “show me the money”. Those two papers analysed the change in the employment market for athletes from our largest professional sporting codes; and the imperative to develop refugee law to accommodate economic refugees, respectively. Moreover, we are delighted to announce that the submission on the infusion of Ubuntu into the Law of Contract was specifically approved by Chief Justice Mogoeng Mogoeng prior to publication, hence the UKZN Student Law Review has received endorsement from the highest echelon of the judiciary. Indisputably, the first edition of the Law Review will therefore go a long way towards ensuring that UKZN is indeed the Premier University of African Scholarship.
Every paper submitted to the UKZN Student Law Review undergoes a stringent double-blind peer-review process prior to publication to ensure the highest quality of the Law Review. This process is also designed to simultaneously develop the writing skills of the undergraduate law students who contribute to the Law Review. In this regard, the editors wish to convey their appreciation to the following independent reviewers, who so generously assisted in ensuring the high quality of the Law Review: Ramesh Singh, Marco Voller, Professor Gus Waschefort, Asheelia Behari, Edmund Szudrawski, Chantelle Moyo and Bronwyn Parker, Rowena Bernard, Lesala Mofokeng, Willene Holness and Meda Couzens and Chris Schembri.
Finally, we wish to acknowledge the constant support and assistance provided by the Dean and Head of the School of Law as well as the large number of staff members who have not hesitated to provide thoughtful advice, encouragement and training, with specific gratitude expressed to Dr Caroline Goodier, David Barraclough, Professor Bob Williams and Chris Gevers for their assistance in training the editors. Gratitude is also extended to Mr Ngonidzashe Mupure and Hein Waschefort who have designed the logo, banner and publications of the UKZN SLR. Special mention goes to Mr Tebello Thabane who worked with the student founders of the UKZN SLR at its initial stages until he left the institution.
Lee Stone
Out-going Managing Editor (2013)
CIVILIANS AT WAR: ASSESSING THE DICHOTOMY IN THE LEGAL STATUS OF VOLUNTARY HUMAN SHIELDS
Moreblessing Bhero
4th year LL.B, University of KwaZulu-Natal, Howard College
This article will deal with the issue of human shields in International Humanitarian Law. This has been a contentious issue over the past few years, especially with the increase in the use of voluntary human shields (VHS) and the lack of a definite legal status for them. The different types of human shields in International law will be discussed and thereafter there will be a discussion of other categories of persons in IHL such as combatants, non-combatant, unlawful belligerents, civilians and what is required of them as well as protections afforded to them in relation to VHS. It is argued that the most suitable category for VHS to be classified as at present is that of a civilian. This article will discuss the legal consequences of attacking this group and various principles to be taken into account when attacking areas where they are present. In conclusion it will be submitted that where VHS directly participate in hostilities such as shielding military camps or objects, should be deemed to have forfeited their civilian status and protections.
APPLICATION OF THE CONSTITUTIONAL VALUE OF UBUNTU IN PRIVATE RELATIONS: THE PRIVATE LAW OF CONTRACT AS A TEST CASE
Sboniso Cibane
Alumni & LLM Student, Catholic University of Lyon; Clerk to Chief Justice Mogoeng, Constitutional Court
Ubuntu is recognised as a broad, overarching constitutional value. However, it is impossible – if not utterly futile – to define the concept with any degree of conviction. The constitutional status of ubuntu as a foundational value is widely accepted. However, the normative content of ubuntu and its effect on private relations remains elusive. Notwithstanding the caution that because ubuntu represents a world-view, it should not be taken out of the social context which underlies its meaning and value, this paper explores a new development in the debate: the possibility of application of ubuntu to private contractual relations in light of the Constitutional Court decision in Everfresh Market Virginia v Shoprite Checkers. The decision opens a gateway for a new approach in private dealings, an approach which gives proper effect to the value of ubuntu on the understanding that common law should be developed to the extent that it does not conform to the spirit, purport and objectives of the Constitution.
ILLEGAL IMMIGRANTS OR ECONOMIC REFUGEES? A CASE FOR THE RECOGNITION OF ECONOMIC REFUGEES IN INTERNATIONAL LAW
Lee Stone
Senior Lecturer, UKZN
Musa Kika
3rd year LLB, Howard College Campus
The current international refugee framework only recognises victims of political persecution as eligible for refugee status. Economic refugees are categorically denied refugee status, yet human security and life are equally threatened by serious economic challenges as much as political unrest and crackdown. With regions such as sub-Saharan Africa being hard hit by mostly politically-triggered economic challenges, economic refugees are on the move, and far from finding refuge in destination countries, they find themselves ineligible for refugee status and in continued violation and deprivation of their rights. It is time that the definition of refugees be extended to embrace economic refugees. While many persons might not have a "well-founded fear of persecution", they do have a "well-founded fear of injury, deprivation of human rights, and even death", squarely qualifying them for international protection. The differentiation between political and economic refugees is not justified within the wider human rights discourse that speaks of equal status of rights, and mutual cumulativeness. Neither can it be justified from a humanitarian perspective.
WHERE ARE WE WITH DISABILITY? A REVIEW OF DISABILITY IN TERTIARY INSTITUTIONS
Muhammad Suleman
Alumni; SLSJ Research Fellow, Section 27
Unlike the right to basic education, the Constitution does not include an unqualified right to further education. Section 29(1)(b) of the Constitution states that everyone has a right to “further” education, which must be made progressively available and accessible through reasonable measures. However, section 9 prohibits the exclusion of persons from such institutions based on their disabilities. The author argues that although persons, including persons with disabilities, do not have an unqualified right to further education, upon acceptance into such an institution, disabled persons’ rights to further education must be upheld. However, since there is as yet no codified legislation protecting the rights of persons with disabilities, such individuals are required to enforce their rights through the prisms of equality and dignity. The paper compares two prominent theories of disability, i.e the Social and Medical Models, as well as the international and national legislative framework in order to examine how the rights to equality and dignity can be enforced for disabled students accepted into tertiary institutions.
THE ARTISTIC AND POLITICAL BROUHAHA: THE RIGHT TO FREEDOM OF EXPRESSION VERSUS THE RIGHT TO DIGNITY
Alison Vadachalam
4th year LLB, Howard College Campus
In the exercise of freedom of expression, there is no room for political agendas and the right should not be limited by what are essentially purely political motives which seek to censor art. In making my argument, I will traverse the meaning of the right to freedom of expression on the international and regional levels. This framework will then be used to explore the development of the right in the South African context, as it is entrenched in the Constitution and reaffirmed in the Equality Act. The primary focus of the paper is the in-depth analysis of South African case law in order to establish the level of protection afforded to this right by our courts. The epitome of the collision between art and politics is undoubtedly the recent satirical art work by Brett Murray, “The Spear”, which forms the basis of the practical application of the right to freedom of expression in “political contexts” in South Africa.
‘SHOW ME THE MONEY!’ A NOTE ON SOME DEVELOPMENTS IN PROFESSIONAL SPORTS EMPLOYMENT AND INTERNATIONAL SPORTS LAW, AND THEIR IMPACT ON SPORT IN SOUTH AFRICA
Dr Andre Louw
Senior Lecturer, School of Law, Howard College Campus
Sport is a multi-billion dollar industry representing roughly 3% of global trade. Given that most of South Africa’s major professional sporting codes are so closely linked to European sporting codes, South Africa has an ideal time-zone location in the global sports broadcasting schedule. The impact of this has been that among others, most important European sports employment law cases in recent years served to change the employment market for athletes from our largest professional sporting codes, on the international stage. Through an examination of some of the leading cases such as Bosman, Kolpak; and Eastham v Newcastle United FC, this note discusses the effect of international sporting legal trends on the local scene and on local stars’ participation in international sport. It then continues to discuss the phenomenal levels of remuneration earned by the world’s star athletes, and to suggest a couple of reasons why those astronomical player salaries may well be justified, if considered against the backdrop of some of the characteristics of the industry within which these athletes ply their trade. Generally, it is hoped that this piece might engender some interest in sports law amongst students and that it will make for an interesting read on a very atypical industry and its interaction with the law.
MOTSWAGAE V RUSTENBURG LOCAL MUNICIPALITY: ANALYSIS OF THE EXPANSIVE INTERPRETATION OF SECTION 26(3) OF THE CONSTITUTION
Cebo Nzuza
3rd year LLB, Howard College Campus
On 7 February 2013, the Constitutional Court handed down an important constitutional-property rights decision in Motswagae v Rustenburg Local Municipality which extended the ambit of section 26(3) of the Constitution. Section 26(3) provides: ‘[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances…’. The Respondents had engaged in a reconstruction and redevelopment project of Tlhabane Hostel occupied by the Applicants, despite not having reached consensus with the Applicants as to where they would reside during the reconstruction. This paper will analyse the Constitutional Court decision, which not only overturned the decision of the High Court, which refused to grant an interdict in favour of the applicants, but also extended the meaning of the word ‘eviction’ to include occupiers who have had their right to a peaceful and undisturbed occupation of their home infringed. The impact of such an extended definition will be examined in terms of its effect on future eviction matters.