Research Articles (Faculty of Law)

Permanent URI for this collectionhttps://hdl.handle.net/10566/219

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Challenges and perspectives of female incarceration in Mozambique: a socio-legal approach)
(Onati International Institute for the Sociology of Law, 2025) Lorizzo, Tina; Nhantumbo, Ilídio; Sigaúque, Lourenço
This article examines the rise in female incarceration in Mozambique over the past two decades, investigating its causes, impacts, and institutional responses. Using a qualitative methodology, it draws on statistical data, court records, and interviews with judges, prison officials, civil society representatives, and incarcerated women. Findings show that poverty, domestic violence, gender inequality, and the insurgency in Cabo Delgado contribute to the criminalization of women. Prisons face structural deficiencies and limited reintegration measures, alongside the underuse of alternative sentences. The study reveals that histories of violence are rarely considered during trials, leading to disproportionate punishments. The research recommends legal and institutional reforms grounded in the Bangkok Rules and international human rights standards. Its main contribution is the advocacy for a gender-sensitive criminal justice system that acknowledges women’s social vulnerabilities and promotes rehabilitation, reintegration, and equitable access to justice.
Jurisdictional immunity in South Africa: interpreting section 2 of the foreign states immunities act in light of article 6(2)(B) of the United Nations convention on jurisdictional immunities of states and their property, 2004, and its drafting history
(Juta and Company Ltd, 2025) Mujuzi, Jamil Ddamulira
In East Asian Consortium BV v MTN Group Limited the applicant sued the respondent in a South African court for allegedly bribing Iranian officials to award the latter a tender at the expense of the former. The respondents invoked section 2 of the Foreign States Immunities Act, 1981, to argue that South African courts did not have jurisdiction over the matter because the action was indirectly against the Iranian government which enjoyed jurisdictional immunity under article 6(2)(b) of the Immunities Convention, 2004. The majority of the court declined to interpret section 2 of the Foreign States Immunities Act in light of article 6(2)(b) of the Immunities Convention. In reaching this conclusion, the court relied on the United Kingdom Supreme Court’s decision in Belhaj v Straw, which held that the drafting history of article 6(2)(b), as well as state practices, showed that it is not customary international law, and that in the United Kingdom the Immunities Convention was not regarded as international law. In this article, the author argues to the contrary. By undertaking an in-depth analysis of the drafting history of article 6(2)(b) of the Immunities Convention and current state practices, the author argues that article 6(2)(b) of the Immunities Convention is international law (as understood by the South African Constitutional Court). Consequently, the court should have relied on it in interpreting section 2 of the Foreign States Immunities Act. It is also argued that a combined reading of the drafting history of article 6(2)(b) of the Immunities Convention and section 2(2) of the Foreign States Immunities Act shows that the court should have held that it did not have jurisdiction in the case. It is argued, further, that article 6(2)(b) is not limited to cases where a foreign state has legal interest in property but that it is applicable to interests, rights, property and activities. Furthermore, since the alleged bribery took place in Iran and the acts in question were juri imperii, South African courts did not have jurisdiction.
South African courts’ current definition of suitable alternative accommodation in eviction matters
(Cambridge University Press, 2025) Fick, Sarah
South Africa’s democracy is 30 years old, and for 30 years the courts have been interpreting the right of access to adequate housing found in section 26 of the Constitution. Many parts of this right have been developed; one such development is that courts have found that the right includes a duty on the state to provide (temporary) emergency alternative accommodation in eviction matters to those facing homelessness. Throughout the years, courts have grappled with the suitability of this alternative accommodation; it finally seems like some clarity has been reached regarding when alternative accommodation would be considered suitable, due to the courts’ recent acceptance of alternative accommodation offered by the state as suitable. This article considers how the courts currently determine the suitability of emergency accommodation and what types of alternative accommodation has been accepted; it further explores the issues arising from these findings.
Jurisdictional Immunity in South Africa: Interpreting Section 2 of the Foreign States Immunities Act in Light of Article 6(2)(B) of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004, and its Drafting History
(Juta and Company Ltd, 2025) Mujuzi, Jamil Ddamulira
In East Asian Consortium BV v MTN Group Limited the applicant sued the respondent in a South African court for allegedly bribing Iranian officials to award the latter a tender at the expense of the former. The respondents invoked section 2 of the Foreign States Immunities Act, 1981, to argue that South African courts did not have jurisdiction over the matter because the action was indirectly against the Iranian government which enjoyed jurisdictional immunity under article 6 (2)(b) of the Immunities Convention, 2004. The majority of the court declined to interpret section 2 of the Foreign States Immunities Act in light of article 6 (2)(b) of the Immunities Convention. In reaching this conclusion, the court relied on the United Kingdom Supreme Court’s decision in Belhaj v Straw, which held that the drafting history of article 6 (2)(b), as well as state practices, showed that it is not customary international law, and that in the United Kingdom the Immunities Convention was not regarded as international law. In this article, the author argues to the contrary. By undertaking an in-depth analysis of the drafting history of article 6 (2)(b) of the Immunities Convention and current state practices, the author argues that article 6 (2)(b) of the Immunities Convention is international law (as understood by the South African Constitutional Court). Consequently, the court should have relied on it in interpreting section 2 of the Foreign States Immunities Act. It is also argued that a combined reading of the drafting history of article 6 (2)(b) of the Immunities Convention and section 2 (2) of the Foreign States Immunities Act shows that the court should have held that it did not have jurisdiction in the case. It is argued, further, that article 6 (2)(b) is not limited to cases where a foreign state has legal interest in property but that it is applicable to interests, rights, property and activities. Furthermore, since the alleged bribery took place in Iran and the acts in question were juri imperii, South African courts did not have jurisdiction
An overview and critique of the labour courts' interpretation and application of protection against indirect forms of unfair discrimination as provided for in South Africa's employment equity act
(North-West Unversity, 2026) Huysamen, Elsabé
Unfair discrimination is deeply woven into the fabric of South African society. In the post-apartheid constitutional era, the Constitution guarantees the right to equality in the pursuit of "the full and equal enjoyment of all rights and freedoms". This reflects the adoption of substantive equality, which goes beyond mere formal equality. The constitutional right to equality is grounded in two constitutionally mandated mechanisms: affirmative action, and the prohibition of unfair discrimination. Within the broader transformative vision of the Constitution, the prohibition of unfair discrimination plays a dual role: it serves as a baseline for the defence of formal equality; and it acts as a tool of transformation, particularly through the protection against indirect unfair discrimination. Protection against indirect unfair discrimination is also provided in section 6(1) of the Employment Equity Act. In a transformative context, protection against indirect discrimination is particularly significant because it recognises that equal treatment can sometimes perpetuate inequality. By uncovering and dismantling hidden barriers and power structures in the workplace, protection against indirect unfair discrimination plays a crucial role in fostering substantive equality and driving long-term, systemic change. Yet, despite its transformative potential, the application of protection against indirect unfair discrimination in South African labour jurisprudence has been limited. Against the aforesaid background, the article provides an overview of the approach adopted by South African labour courts to the protection against indirect unfair discrimination under South African labour law, while ultimately critiquing it.
Tracing Civil-law Property in Land Reform and Housing: Tenacious Traditions and Divides
(North-West Unversity, 2026) Viljoen, Sue-Mari
Post-apartheid South Africa inherited grave property divisions along racial lines, which constitutionally ordained property and housing provisions set out to redress along egalitarian lines. The article unpacks this property reform imperative from a distinctly civil-law perspective. Civil-law traditions, specifically the concept of property and the public/private divide, are critically reflected on to trace the extent to which the reformation of the property institution included civil-law property as a means for reform, and therefore also altered some of its underlying apartheid-led concepts. The article shows that civil-law property continues to thrive for the minority, whereas several crucial land reform and housing policies and legislative measures created statutory types of rights with "secure tenure" under the public realm. The state opted to create new public-law land reform and housing laws under the auspices of constitutional aims, yet with meager civil-law property elements. In consequence, private property rights with their distinct civil-law heritage remain intact and are mostly left unamended as a distinctly private-law subject. Instead, the Constitution as the central text should arguably have led to new levels of civil law meaning. The article reflects on the inadequate extent to which property provisions in the Constitution have assimilated with civil-law property rules, principles and practices into one constitutionally-embedded property discourse. The article argues that civil-law property should be deliberately relied on to align the discourse with constitutional property imperatives, thereby changing civil-law traditions that continue to entrench norms and virtues of the previous apartheid-led regime, and replacing them with new, transformative ideals. © 2026, North-West Unversity. All rights reserved.
Dissolving a muslim marriage in South Africa and the right to freedom from discrimination: The talaaq v. the Divorce Amendment Act (2024) ‘routes’ in the context of H.A v N.A (February 2025)
(SAGE Publications Ltd, 2026) Mujuzi, Jamil Ddamulira
In February 2024, Parliament passed the Divorce Amendment Act (DAA) to provide for the circumstances in which those who are married according to Muslim law can dissolve their marriages. This was pursuant to a Constitutional Court decision which found that some provisions of the Divorce Act unfairly discriminated against those married according to Muslim law. The DAA commenced on 14 May 2024. It defines a Muslim marriage and provides for, inter alia, the circumstances in which such a marriage may be dissolved and the distribution of assets at the dissolution of the marriage. However, it is silent on whether it replaces the husband’s right to terminate a marriage through talaaq and on the woman’s right to terminate a marriage. In H.A v N.A, the High Court declined to resolve the issue of whether a woman against whom a talaaq has been issued can institute divorce proceedings under the Act. Relying on its drafting history, the author argues that the DAA does not ‘take away’ a husband’s right to terminate a marriage through talaaq. Likewise, it does not take away the woman’s right to terminate a marriage hence guaranteeing the right to equality of the spouses in this regard. It is argued that taking away that right would amount to discrimination on the ground of religion. The DAA is equally applicable to all types of Muslim marriages irrespective of the Islamic denomination (sect).
Cornell in South Africa: a conversation
(Springer Science and Business Media B.V., 2025) van Marle, Karin; Barnard-Naude, Jaco; de Villiers, Jan-Harm
Drucilla Cornell had a long and deep relationship with South Africa. Since her first visit in 2001 she visited South Africa frequently and convened a project on Ubuntu over many years. Four close colleagues reflect on their first encounters with Drucilla; the contribution she made to their university and how their own scholarship was influenced by her work. They also pay their respect to her legacy and memory.
Interface of formal and informal peacebuilding mechanisms in the South of the Sahara
(SAGE Publications Inc, 2026) Diala, Anthony
Contemporary peacebuilding is dominated by the liberal peace model, which assumes that democratic governance, rule of law, and market-based reforms universally promote peace. However, the liberal peace has not fared well in the global South, where colonial legacies influence the interaction of normative orders. Scholarly attention has thus turned to indigenous mechanisms, which work well within their own socio-cultural settings through their promotion of dialogue, compromise and group welfare. However, literature is thin on the interface of formal and informal mechanisms of peacebuilding in the south of the Sahara, especially their standardizing influence. Drawing on key informant interviews in Nigeria, South Africa and Somaliland, this article analyses these mechanisms, arguing that indigenous processes have come under the shadow of neoliberal human rights. It finds that poor management of legal pluralism hinders policy engagement with informal mechanisms and suggests a theoretical platform for harmonizing informal mechanisms with institutionalized frameworks.
An analysis of the legal nature of sdg 6 within the context of international water law
(North-West Unversity, 2025) Kasker, Muhammad Sameer
Through the Sustainable Development Goals (SDGs), a pledge was made to renew the commitment to sustainable development and to ensure the promotion of an economically, socially and environmentally sustainable future for our planet and for the present and future generations. Water access and conservation are categorised as SDGs by way of SDG 6, which involves a commitment to ensuring the availability and sustainable management of water and sanitation for all. It is one of the most significant goals in terms of its potential impact on development outcomes. Since the state of access to water has been an obstacle for development in many parts of the world for a long period of time, and since there have been increasingly urgent warnings of a global water crisis, SDG 6 has the potential to fast-track the global water agenda by bringing these issues and potential solutions to the fore. The current SDGs are widely regarded as a global effort to recognise basic human rights and needs and to ensure the enjoyment of these needs. Thus, it is pertinent to understand the legal status of SDG 6 (and SDGs in general) within the international community. The fact that these goals are so widely accepted cannot be ignored and their impact is pivotal in awakening the global conscience with regard to key issues within human society and the ecology. The aim of this article is to determine the legal status of SDG 6 by examining the principles of international law and by making comparisons with certain international law instruments and policies related to water and freshwater law.
An appraisal of the Kwoyelo judgment at the international crimes division in Uganda
(Oxford University Press, 2025) Nortje, Windell; Nanyunja, Brenda
After being detained for 15 years, Thomas Kwoyelo was convicted and sentenced in 2024 by the International Crimes Division in Uganda. He was charged with 93 counts of war crimes, crimes against humanity and domestic crimes, convicted on 44 counts and sentenced to 40 years’ imprisonment. His conviction and sentence came a few years after another former child soldier, Dominic Ongwen, was convicted and sentenced by the International Criminal Court (ICC). While Ongwen was the first former child soldier to appear at the ICC, Kwoyelo, who was also abducted as a child, was convicted and sentenced by a domestic court. Ongwen and Kwoyelo’s past as child soldiers was mostly disregarded during their trials. This article investigates the Kwoyelo judgment and questions why it mostly adopted a retributive rather than a restorative justice approach to the trial, especially in a country such as Uganda that has implemented several forms of restorative justice in the past. This is one of the first articles to examine the Kwoyelo judgments on conviction and sentencing and makes an important contribution to the field of the prosecution of crimes under international law by domestic courts.
“What remains? the language [culture] remains”
(Sun Media, 2025) van Marle, Karin; Danie Brand
As scholars who have struggled with the question of the relationship between transformation and law for most of our work lives, we remain interested in and often perplexed by the ways in which legal scholars, the media and members of the public at large continue to talk about and comment on matters concerning law, constitution and change as if they are isolated or demarcated from each other. In this vein we were intrigued by the specific way in which the title of and the call for papers of a recent conference, held at the University of the Free State, was formulated: ‘Transformative constitutionalism and private law’. In our paper delivered at this conference, we spoke about what this specific formulation elicited in our minds. This article is a reworked and expanded version of that paper.
Five shaky pillars – a criticism of the reasoning on which the stay at South Point properties v Mqulwana (SCA) decision rests
(North-West Unversity, 2025) Fick, Sarah
In July 2023 in the case of Stay at South Point Properties (Pty) Ltd v Mqulwana the Supreme Court of Appeal (the SCA) found that student accommodation does not constitute a "home" in terms of section 26(3) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). Section 26(3) of the Constitution provides that "[n]o one may be evicted from their home … without an order of court made after considering all the relevant circumstances." The students' "residence" was not their "home". This meant that they could not rely on the protection provided by section 26(3) of the Constitution or the legislation giving effect to this right, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE). This note identifies five shaky pillars that the decision rests on and argues that these pillars may be too weak to uphold the judgment. Importantly, the note does not aim to determine whether a residence should in fact be considered a home. Rather the note intends to highlight the problems with the reasoning of the court in coming to its conclusion.
Pathways, pressure, and profit: adaptive innovation and strain in a convicted cybercrime academy called Hustle Kingdom
(Routledge, 2025) Lazarus, Suleman; Soares, Adebayo; Button, Mark
This research offers the first empirical examination of the “Hustle Kingdom (HK)”phenomenon. Hustle Kingdoms are underground cybercrime training centers in West Africa that recruit and train young men to become digital fraudsters. The empirical foundation of this study draws on case files from the Economic and Financial Crimes Commission (EFCC) concerning the prosecution and eventual conviction of the proprietor and students of a Hustle Kingdom. Ethnographic field notes and informal conversations with relevant authorities supplement this dataset. It examines the significance of Merton’s Strain Theory ,focusing on the innovation mode of adaptation, to understand how economic pressures and socio-fabric elements of society drive individuals toward illicit entrepreneurship. Our findings reveal key characteristics of these academies ,including their structure, recruitment and governance strategies, motivations ,indirect enablers, and prosecutorial challenges. While this pioneering investigation positions Hustle Kingdoms as an alternative route to economic mobility for many youths, it situates Hustle Kingdoms within broader processes of deviant innovation and informal economic adaptation. The study concludes by reflecting on the broader ecosystem of subtle enablers.
Copyright law and human rights: blind SA v minister of trade, industry and competition and its potentially far-reaching implications
(Taylor and Francis Ltd., 2024) Mupangavanhu, Yeukai
The tension between intellectual property protection and the advancement of human rights has been a pressing issue for a long time. The South African landmark case Blind SA v Minister of Trade, Industry and Competition brings to the fore, once again, the problems that can arise from the protection and enforcement of intellectual property rights. The Constitutional Court’s decision, in this case, is of great significance since it reinforces the importance of ensuring that laws, including intellectual property laws, comply with the pro-visions of the Constitution of the Republic of South Africa, 1996. The lack of disability exceptions in the Copyright Act 98 of 1978 was found to have violated the right to equality and the concomitant rights of people with print-based disabilities. The article argues that instead of the laws heavily leaning on protecting the rights of copy-right owners, there should be a shift to the rights of users. It is a constitutional imperative in South Africa that human rights should not only be recognised but also realised. The article concludes that the interpretation and enforcement of intellectual property laws in Africa at large need to be human rights-oriented.
IP case law development
(National Institute of Science Communication and Policy Research, 2025) Oriakhogba, Desmond; Raza, Aqa; Alam, Ghayur
This Paper identifies and analyses the decisions of the Supreme Court of India (hereinafter, the Supreme Court) relating to intellectual property (IP) reported1 in the year 2024. The paper seeks to answer the following questions: (i) how the Supreme Court interpreted-constructed the text of the IP statutes through her law declaring power under Article 141 of the Constitution of India; (ii) what has been the approach of the Supreme Court in deciding these cases in the year 2024; and (iii) whether or not the Supreme Court has contributed to the development of IP jurisprudence in the year 2024 through these decisions. © 2025, National Institute of Science Communication and Policy Research.
Fair work for platform workers: lessons from the EU directive and beyond
(Oxford University Press, 2025) Du Toit, Darcy; Fredman, Sandra; Bertolini, Alessio
The adoption of an EU Directive on Platform Work in March 2024 signals a crucial acknowledgement of the need for legal regulation of a burgeoning form of work which defies traditional conceptions of the employment relationship. In the past decade, platform work has been one of the fastest growing forms of work globally, and Europe has been no exception. It is estimated that, as of 2022, there are over 28 million people performing platform work in the European Union alone, with the number likely to rise to 43 million by 2025. Although it promises flexibility, autonomy and lower barriers to entry compared to more traditional forms of work, platform work has been shown to foster precarity and insecurity for many. Platform work combines the challenges of casual work, which have already strained the boundaries of labour law, with those of algorithmic management, in which managerial power is increasingly mediated by Artificial Intelligence (AI). The EU Platform Work Directive (PWD) is potentially a blueprint not just for regulating platform work, but for wider regulation of both casual work and algorithmic management systems. This paper analyses the PWD from the perspective of our extensive on-the-ground research as part of the Fairwork project and uses this experience to suggest ways forward for the proposed ILO Convention. The project works along three axes: to understand the conditions of platform workers better so that we can shape appropriate decent work standards; to achieve change through annual ranking of platforms based on compliance with the Fairwork principles; and to use this evidence to craft legal standards and explore avenues to achieve their formal adoption. The paper begins discussing who should be the subject of legal protection. The paper then turns to the substantive rights which have been formulated and tested by the Fairwork project. The paper concludes with recommendations for a future proposal for an ILO Convention on Platform Work.
An appraisal of the legal and institutional frameworks for the management of seized and forfeited assets in Nigeria
(Elsevier B.V, 2025) Ayinde, Dare Joseph
This paper aims to examine the laws that regulated the management of seized and forfeited assets before the enactment of the Proceeds of Crime (Recovery and Management) Act of 2022 (POCA), identifying their flaws. Also, it explores the provisions of POCA on the management of seized and forfeited assets, highlighting how POCA addresses the flaws in the legal and institutional frameworks for the management of these assets. Design/methodology/approach: This paper adopts a doctrinal research methodology. It also makes use of primary sources, national laws, as well as secondary sources, such as journal articles. Findings: It establishes that Nigeria now has comprehensive legal framework for the management of forfeited assets. However, POCA does not contain detailed provisions on the management of seized assets. Also, it establishes that, unlike what was obtainable before the coming into force of POCA when there was no clear institutional framework for the management of seized and forfeited assets, POCA establishes a Directorate of Proceeds of Crimes in all law enforcement and some regulatory agencies. Originality/value: To the best of the author’s knowledge, this is the first article that examines the legal and institutional framework for the management of seized and forfeited assets in Nigeria.
Artifacts of judging: Justice Johan Froneman
(North-West Unversity, 2024) van Marle, Karin; du Plessis, Elmien
Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the "rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right". He further argued for the Constitution "to become … a living document". In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman. Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal. In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases.
The president’s role(s) in the law-making process in Uganda
(Oxford University Press, 2023) Mujuzi, Jamil Ddamulira
Articles 79(1) and (2) of the Constitution of Uganda provide that subject to the provisions of the Constitution, only Parliament or a person or body authorized by Parliament, has the power to make laws. Article 91 provides ways in which the President participates in the law-making process. I examine the Hansard of the 10th Parliament of Uganda (May 2016—May 2021) to demonstrate how the President invoked Article 91 to, inter alia, return Bills to Parliament or to decline to assent to Bills. The 10th Parliament passed 118 Bills, seven Bills were withdrawn and the President returned 11 Bills. The Hansard show that: (i) in most of the cases, Parliament amended the Bills to address the President’s concerns; (ii) there are instances in which Parliament appears to disregard the Constitution especially in cases where the President has exceeded the constitutional time limit within which he must assent to Bills; (iii) Parliament applied different methodologies to gather the information it needed to revise the Bills and (iv) in a few cases, Parliament disagreed with the President and declined to change the returned clauses of the Bills. The article shows, inter alia, that the President wielded enormous powers in the law-making process contrary to what was envisaged by the drafters of the Constitution. It is argued, inter alia, that in reconsidering the Bills returned by the President, Parliament should not ignore the issue of public participation otherwise the Acts may be declared unconstitutional.

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