UKZN STUDENT LAW REVIEW
DEVELOPING WRITING, DEVELOPING LAW
Third Issue of the UKZN Student Law Review
NOTE FROM THE MANAGING EDITOR
The third edition of the UKZN Student Law Review has been a long time coming and has accrued many debts along the way. On behalf of the Editors and myself I would like to thank the following colleagues for their invaluable assistance as reviewers of submissions to the Review: Professor Michael Kidd, Mr Maropeng Norman Mpya, Professor Managay Reddi and Ms Clydenia Stevens. We would also like to record our gratitude to the following Master of Laws Students’ for their assistance in the review process: Ms Ferona Khan, Ms Therusha Moodley, Mr Anele Solethu Mpambane and Mr Mthoko Sithole.
On their route to publication, the articles in this edition have passed through many hands, and we would like to thank the previous Editors and previous Editor-in-Chief for their contributions, and for their commitment in not giving up on the Review (even when some had moved on from the School of Law). To this end, we would like to extend a special vote of thanks to Michaela Steytler (Previous Editor-in-Chief) as well as Tafadzwa Dlamaka (Editor), Amy Gooden (Editor), and Thabo Mkhize (Editor) – all of whom made it possible to keep the Review not only on track, but at times afloat.
On a personal note, I would like to thank the present Editorial team for their hard work, persistence and unrelenting enthusiasm throughout the long and at-times arduous process of bringing a publication such as this into being. During the course of taking over the Managing Editor role a copy of the 1976 edition of the (then) Natal University Student Law Review came across my desk.
The edition contained articles on inter alia the criminalization of racist statements and the prudence thereof. So much has changed since 1976 - an important year in itself for youth politics in South Africa - and yet some things remain as clear and as pressing as they then did, including: (i) the need to support and encourage critical engagement with the law and its role in society and its evils, and (ii) the importance that young people (including law students) have and must continue to play leading this conversation. With this Third Edition of the UKZN Student Law Review we re-dedicate ourselves to these tasks.
Christopher Gevers
Managing Editor
August 2019
EDITOR-IN-CHIEF’S NOTE
After a brief hiatus, the University of KwaZulu-Natal Student Law Review (UKZN SLR) is back with a new and pulsating Third Issue. This Third Issue comes after a three-year period of uncertainty. We are back with a new team, a new Managing Editor and a new Academic Advisory Board. With a new team, the UKZN Student Law Review is back and better than ever! Indeed, we have gone through a lot throughout this period. However, with this Third Issue, our aim is to re-inspire hope in our students as well as our readers and potential authors to keep supporting and trusting in the great work we do.
The Publication of this Third Issue of the UKZN SLR would not be possible without the support of our authors, without whom we would not have such great works to share with you. Undeniably, our authors are a source of inspiration! They have been patient with us and entirely trusting of our processes. These Articles [as advanced by our authors] are of the highest standard. We therefore hope that our readers will come to enjoy and greatly benefit from them.
With this Third Issue, we have left no stone unturned. Having Articles that touch on numerous areas of the Law, the work we have produced is of the highest calibre. We have Articles that focus on International Laws, Regional Laws as well as Domestic laws. In this Third Issue, our Articles touch on critical matters of contention. Arguments are made on notions relating to the Unconstitutional Changes of Government within the African Region. We have arguments made on contemporary issues of Domestic Violence; Gender-Based Violence; and Transnational Terrorism, to name a few. We also have an Article that touches on the matter of Access to Justice by the less Privileged members of our society. In addition, there is also an Article that looks at the issue of the Purchasing of Defective Goods and the rights of recourse that a consumer might have in this regard. Suffice it to say, I would be entirely at fault if I fail to emphasize that our Third Issue also includes work that deals with Occupational Health and Safety Laws, with a specific focus on China, and which provides for a great comparative study analysis. Finally, we also have an Article that looks at Bio-Industrial Innovation in the International sphere, with a specific focus on International Cooperation for eradicating Poverty and setting the scene for a Greener and better Economy.
This Issue is therefore meant to showcase the efforts of our Editorial Committee and celebrate the high calibre of work submitted by our authors. Going forward, we hope to bless our readers with an even better Fourth Issue. This Issue has indeed set the standard high and the team is enthusiastically working towards the release of the Fourth Issue before the end of this Academic Year. But, for now, sit back and enjoy this Third Issue of our University of KwaZulu-Natal Student Law Review Journal.
Muzi Mgabhi
Editor-in-Chief
August 2019
A CRITICAL LOOK AT UNCONSTITUTIONAL CHANGES OF GOVERNMENT IN AFRICA: DEVELOPMENTS AND PREVENTATIVE MEASURES TO BE EMPLOYED BY THE AFRICAN UNIONclick here to read this article
Khulekani Shozi
LLB Student University of KwaZulu-Natal, Howard College
This article will proffer the argument that the African Union (AU) on its own will not prevent or minimize the continuing impact of such phenomenon, effective involvement and cooperation is required by all its Member States. Therefore, as a point of departure, the article will firstly discuss the nature and development of UCG in Africa. Thereafter, it will provide the background of UCG such as the military coups d’état in Africa, the refusal of the incumbent governments to relinquish power, as well as any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government. It will further look at the position of the OAU/AU in an attempt to prevent this phenomenon by providing an analysis of Article 4 (Principles) and Article 30 (Suspension) of the Constitutive Act, as well as issues in the Constitutive Act relating to this phenomenon. Finally, the article will recommend measures that could be employed by the AU to prevent specifically the insurgence of military coups and the refusal of incumbent governments to relinquish power on the African continent.
A CRITICAL LOOK AT UNCONSTITUTIONAL CHANGES OF GOVERNMENT IN AFRICA: DEVELOPMENTS AND PREVENTATIVE MEASURES TO BE EMPLOYED BY THE AFRICAN UNION click here to read this article
Khulekani Shozi
LLB Student University of KwaZulu-Natal, Howard College
This article will proffer the argument that the African Union (AU) on its own will not prevent or minimize the continuing impact of such phenomenon, effective involvement and cooperation is required by all its Member States. Therefore, as a point of departure, the article will firstly discuss the nature and development of UCG in Africa. Thereafter, it will provide the background of UCG such as the military coups d’état in Africa, the refusal of the incumbent governments to relinquish power, as well as any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government. It will further look at the position of the OAU/AU in an attempt to prevent this phenomenon by providing an analysis of Article 4 (Principles) and Article 30 (Suspension) of the Constitutive Act, as well as issues in the Constitutive Act relating to this phenomenon. Finally, the article will recommend measures that could be employed by the AU to prevent specifically the insurgence of military coups and the refusal of incumbent governments to relinquish power on the African continent.
ACCESS TO JUSTICE AND THE ROLE OF THE GOVERNMENT IN HELPING THE LESS PRIVILEGED click here to read this article
Priyanka Naidoo
LL. B (Summa Cum Laude), LL.M Candidate 2018, University of KwaZulu-Natal.,
LL.M Candidate 2018, Harvard Law School.
This paper investigates government’s role in achieving access to justice, through adiscussion of the concept of access to justice, Parliament’s development of the law on theprovision of legal aid, the role that Legal Aid South Africa plays, and ultimately a determination whether government has succeeded in its efforts.
CHINESE OCCUPATIONAL HEALTH AND SAFETY LAW SYSTEM: A SEPARATED SYSTEM? click here to read this article
Kai Lu
LL. B, LL.M, PhD Candidate, Utrecht University School of Law
This research is aimed at examining the two fundamental laws with the research question: Are they enacted on basis of a different approach consisting of: different legislative goals and utilizing different instruments to make the legislative system separated? The research is based on the legal philosophy assumption that goals and instruments are two fundamental components of legislations. Legislation set goals at which to win and in return, the goals provide, among other things, the justification of the legation. Instruments are adopted by legislation for the attainment of selected legislation goals.
CORRELATING BIO-INDUSTRIAL INNOVATION GREENING AND INTERNATIONAL COOPERATION FOR POVERTY ERADICATION TOWARDS GREEN ECONOMY IN POST-RIO+20 DECADES click here to read this article
Sylvestre-José-Tidiane Manga
PhD., LL.D. International consultant to the UN CBD Parties, Montreal (Canada), McGillUniversity affiliated Centre of International Sustainable Developmental Law’ Legal ResearchFellow, Montreal (Canada)
This research seeks to show throughout the text that such a mutually supportive implementation of international cooperation provisions and bio-industrial greening principles is indeed much needed to eradicate poverty worldwide through sustainable production processes in food security, nutrition, sustainable agriculture, energy, sustainable transport, biodiversity, agricultural biodiversity, forestry, fisheries, natural and genetic resources exploitation. In a more normative perspective, we wished industrial greening would have been considered at Rio+20 as a global environmental focus along with international cooperation for poverty eradication.
DOMESTIC VIOLENCE: THE IMPLICATIONS AND EFFECTS ON CHILDREN AND THE LEGAL PROTECTION PROVIDED click here to read this article
Karabo Hiine
LL.B., LL.M (Business Law) (cum Laude), University of KwaZulu-Natal, Howard College.
This paper will focus on the impact and effects of domestic violence on children in homes where they are exposed to aggressive or threatening acts between parents and other adult parties, as well as legal protection granted to these children. It will further explore other possible avenues for the protection of children who witness or experience second-hand domestic violence.
PURCHASING OF DEFECTIVE GOODS AND THE RIGHT TO CONSEQUENTIAL DAMAGES WITH SPECIFIC REFERENCE TO THE EXPERT SELLER click here to read this article
Edith Makavanga
LL. B (cum Laude), University of Kwa-Zulu Natal, Howard College.
The position is unclear, especially when it comes to the liability of expert sellers for consequential damages suffered by a consumer who has purchased a defective product. In this paper, I begin by considering the common law position and then proceed to analyse the provisions of the CPA. I then conclude with the argument that the defence available to distributors and retailers in section 61(4)(c) of the CPA should be completely removed. Alternatively, it should be read as excluding expert sellers.
THE AFRICAN UNION'S COMMITMENT RELATING TO THE PROSECUTION OF SEXUAL AND GENDER-BASED VIOLENCE THAT OCCUR IN ARMED CONFLICT SITUATIONS IN AFRICA click here to read this article
Margaret Ashiru
LLB (University of West of England, Bristol), LLM (Southampton University), PhD
Candidate, University of KwaZulu-Natal, Howard College.
The first part of the article considers the immunity dispute between the ICC and AU, whilst the second part considers decisions taken by the ICC'sPre-Trial Chamber (PTC) regarding state parties which failed to cooperate with the ICC. Thereafter, this article will consider section 46A bis of the Malabo Protocol, which grants immunity to Heads of State and state officials and the effect article 46A bis would have on SGBC committed in Africa.
THE IMPACT OF TERRORISM ON THE STABILITY OF INTERNATIONAL RELATIONS: THE END OF THE COLD WAR AND THE RISE OF GLOBAL TERRORISM click here to read this article
Muzi Mgabhi
3rd Year LL. B, University of KwaZulu-Natal, Howard College.
The paper has five parts to it and will begin by discussing the meaning of ‘terrorism’ and reviewing some of the definitions used both in the International and national context. It is then followed by a detailed overview of the extent of terrorism throughout the world. The third part will then follow with a review of the role of the international community in addressing the phenomenon of terrorism. Part three will therefore focus on the United Nations (UN hereafter), the United Nations Security Council (UNSC hereafter) as well as the Council of Europe (COE hereafter). Part four will thereafter follow with a review of the measures taken to criminalise terrorism through effective counter-terrorism laws. This part is divided into five sections which will focus on what individual states have done to address terrorism. Therefore, the focus will be placed on Spain, Italy, Britain, South Africa as well as America. The last part of the paper will suggest ways in which terrorism can be addressed.