African Student Law Journal

Critiquing the inconsistencies in the application of prodigality and limitations thereof.

2024-07-26T20:10:54+00:00

Generally, due to its subjectivity, it is difficult to measure the appropriate extent to
which individuals can allow legal concepts to influence or even govern their
innermost personal lives. According to the Constitution of the Republic of South
Africa, South Africans have the right to have autonomy over themselves and how
they chose to live their lives (this is inferred from the Bill of Rights, Chapter 2 of the
Constitution), this therefore includes how people choose to manage their own estate.
One of the most pressing questions is whether the declaration of prodigality
invasively strips the prodigal of the ability to exercise their commercial rights and
what implications this has on their human dignity. It is understood that the law has
the duty to protect all citizens, especially children (contained in section 28 of the
Constitution as well as the Children’s Act), and through reasonable means, intervene
when individuals fail to protect themselves. There is, however, a question of whether
the means of the State, which is granting an interdict, thus limiting a prodigal’s
capacity to act as well as further appointing a curator bonis to administer the estate,
are reasonable and to what extent should individuals allow the State to govern their
personal habits. Some believe that the appointment of a curator bonis is invasive of
one’s dignity, freedom, and control over their life. This paper seeks to reveal how
outdated the law of prodigality is and how it needs to be developed so that in application, it does not infringe on a person’s right to human dignity and effectively protects the interests of children.

Feminist spatial justice: Women informal trader organisations re-imagining the city

2024-11-26T14:12:12+00:00

Colonialism has attempted to systematically erase black women and labour from the city imaginary since pre-apartheid times. Under apartheid, this was primarily enforced through the Group Areas Act. Leading up into post-apartheid South Africa, women street traders have emerged as the largest group of informal traders in the global South, yet the economy positions them as marginal to the formal labour system. As a result, exclusionary and systemic violence is inflicted upon these women by the South African state. The Constitution of the Republic of South Africa, of 1996 along with the Businesses Act 51 of 1993, presented an opportunity to protect the legitimacy of these traders' struggles for survival.

This paper, therefore, seeks to answer the question: How can women street trader organisations be used to advocate for the inclusion of women street traders in South African city imaginaries? The article draws on decolonial feminist theory to address this question. It first interrogates the oppressive ideals concerning the use of urban space and examines how these impact women street traders. Additionally, it emphasises the insight of women street traders, shaped by their position and lived experiences within the city.

The paper also recognises that women street traders are already organising, through existing case law and other avenues, to resist these oppressive urban ideals. Furthermore, it acknowledges their use of decolonial feminist organising as a way to assert their agency and human dignity, while employing survivalist strategies.The paper concludes by calling for a stronger movement to empower women street traders politically and economically, emphasizing the need for inclusive city imaginaries that recognize and celebrate their contributions to the urban landscape. Through collective action and advocacy, the potential for creating spatially just cities is explored, ultimately aiming to uplift the dignity and rights of women street traders in South Africa. The paper concludes by calling for a stronger movement to empower women street traders politically and economically, emphasizing the need for inclusive city imaginaries that recognize and celebrate their contributions to the urban landscape. Through collective action and advocacy, the potential for creating spatially just cities is explored, ultimately aiming to uplift the dignity and rights of women street traders in South Africa.

Of Legal Pluralism and Secular Constitutional Centralism

2024-01-16T15:26:29+00:00

S 39(2) of the Constitution,[1] provides that courts, tribunals, or forums must strive to interpret legislation and develop common law and customary law in line with the objects and purports of the Bill of Rights. In addition, sections 15, 30, and 31 of the Constitution provide persons the freedom of religion and cultural identity free from unjust repression. The article seeks to address what this entails. South Africa is a multicultural society in which various socio-legal systems exist.[2] They exist as customary law and cultural-religious practices.[3] Customary law refers to “customs and usages” particular to indigenous black communities of South Africa,[4] while cultural-religious practices apply to the rest, for example, Islamic law.[5] Concerning customary law, the Constitutional Court has held that it exists as an independent source of law subject to the Constitution and must be treated as such.[6] The test lies in determining the reasonable extent cultural-religious practices can be accommodated within the bounds of the Constitution.[7] The Constitution becomes the center by which customary law and cultural-religious practices are ascertained, interpreted, developed, and applied. The test is whether such a rule is constitutionally valid. If not, the court will either develop it or strike it down.[8] Where a cultural-religious practice has not been accommodated, an inquiry as to why is conducted. This involves the Harksen v Lane test for discrimination to determine whether there are justifiable grounds by which said cultural-religious practice is not accommodated within the law.[9] It is this exercise of accommodating customary law and cultural-religious practices subject to the Constitution that has been term Secular Constitutional Centralism. It is an inclusionary method that seeks to incorporate various socio-legal systems, cultural or religious under the ambit of the Constitution.

Keywords: Legal Pluralism, Constitutionalism, Secularism, Secular Constitutional Centralism, Deep Pluralism, Living Law, Customary Law, Cultural-religious Practices, Freedom of Religion, Constitutional Compatibility.

[1] The Constitution of South Africa, 1996, see also S 211(3) of the Constitution of South Africa, 1996.

[2] Rautenbach C Introduction of Legal Pluralism in South Africa (5ed) 2017 at 5.

[3] Rautenbach (2017) at 5.

[4] S 1 of Act 120 of 1998.

[5] Rautenbach (2017) at 5.

[6] Shilubana v Nwamitwa 2009 (2) SA 66 (CC) para 43.

[7] Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 para 83-90.

[8] Bhe v Khayelitsha Magistrate 2005 (1) SA 580 (CC) para 95-119.

[9] Harksen v Lane 1998 (1) SA 300 para 42-50.

International cooperation in criminal matters: Mutual Legal Assistance and Extradition.

2024-09-30T08:58:05+00:00

Abstract

This work examines legal frameworks and mechanisms of international cooperation in criminal matters, focusing on Mutual Legal Assistance (MLA) and Extradition, with a particular emphasis on South Africa's role within the global legal community. The study explores the effectiveness of South Africa's legislative and judicial systems in facilitating international criminal justice, especially in combating transnational crimes such as terrorism, drug trafficking, and human trafficking. By analysing the International Cooperation in Criminal Matters Act 75 of 1996 (ICCMA) and its regulations, alongside key international treaties like the United Nations Convention against Corruption (UNCAC), this paper assesses the adequacy of existing legal provisions and the challenges faced in implementing MLA and extradition. This work highlights the complexities involved in the extra-territorial application of South African law and the potential for legal reforms to improve international co-operation. Through a review of relevant case law, legislation, and international agreements, the study proposes recommendations for improving the efficiency and effectiveness of MLA and extradition processes in South Africa, ensuring they meet the evolving demands of global criminal justice. This work aims to contribute to the ongoing discourse on strengthening international legal collaboration to better address the challenges posed by transnational crime.This study provides a clear analysis of the current state of affairs of international cooperation in criminal matters in South Africa and identify what areas can be improved to make international cooperation in these matters easy and improve effectiveness. The paper will investigate, critically analyze and make recommendations on the extradition procedure, mutual legal assistance and how information sharing between South Africa and other States, the gathering of evidence for use in criminal investigations and prosecutions.

Conflict Dynamics in Human Trafficking and Child Soldiering: A Comparative Study of Sierra Leone and Afghanistan

2025-04-08T12:31:33+00:00

In Sierra Leone and Afghanistan, prolonged conflicts have continuously fostered environments that are conductive to both child soldiering and human trafficking, undermining the right to personal security and resulting in the exploitation of children for purposes of labour, sexual exploitation or as soldiers. These children, often being inherently predisposed to violence, poverty and desperation, are exploited for economic and strategic gain by armed groups and human traffickers on account of their physical and psychological vulnerabilities. The prevalence of these human rights violations have frequently been treated as two distinct phenomena in existing literature, failing to account for the socio-economic vulnerabilities, cultural practices and geopolitical instabilities that render child soldiering and human trafficking as deeply interconnected issues. The intersection of these two concerns is not merely coincidental; rather, the historical, social and legal contexts of both protracted wars reveal that it is indicative of a broader breakdown of social structures, legal frameworks and enforcement mechanisms intended to protect children from manipulation, exploitation and violence. In addition to the need for the development of a comprehensive approach to address the conditions and circumstances that give rise to these abuses, the interconnectedness of child soldiering and human trafficking calls for a concerted effort to implement integrated legal reforms, improve international collaboration and adopt policies that are designed to bolster the resilience of vulnerable communities plagued by warfare. It is only by confronting the structural factors that facilitate these violations that the international community can hope to disrupt the cycle of exploitation and ensure a safer and more secure future for children in conflict zones.

In an effort to safeguard children's rights in society, can stronger laws and stricter regulations effectively prevent child marriages?

2024-10-24T16:32:26+00:00

Child marriage refers to the union of two individuals, one or both of whom are under the age of 18. The minimum age for boys which is 14, and for girls, 12 is inconsistent with the right to equality. Despite the South African Constitution's emphasis on cultural rights, child marriages infringe upon the basic rights of minors. Which includes the right to education, health, equality, privacy, freedom and security. Child marriages often result in forced cohabitation, early pregnancy, and increased risk of rape. The prohibition of child marriages is crucial to safeguarding the well-being and dignity of children. Efforts to abolish child marriages must address cultural sensitivities while prioritising the rights and protection of minors. This paper examines the effectiveness of current laws in safeguarding children's rights and argues for the abolition of child marriages. The Recognition of Customary Marriages Act and the Marriages Act allow for child marriages with parental or ministerial consent, perpetuating this harmful practice. Through analysis of case law, this piece highlights the devastating consequences of child marriages, including sexual assault and deprivation of education. The article recommends strengthening existing laws, setting a suitable minimum age for marriage, and conducting awareness campaigns to educate communities about the harms of child marriages. Ultimately, this paper asserts that the abolition of child marriages is crucial for upholding the principles, spirit and purport of the Bill of Rights contained in the Constitution. By prioritising children's rights and well-being, South Africa can work towards eradicating this harmful practice and ensuring a brighter future for its children.

INSTITUTIONAL AUTONOMY AND THE ADMINISTRATION OF STUDENT DISCIPLINARY PROCESSES IN PUBLIC HIGHER EDUCATION INSTITUTIONS

2025-03-18T19:36:04+00:00

In South Africa, public higher education institutions (HEIs) enjoy a degree of institutional autonomy, allowing them to govern their affairs, including student disciplinary processes. This autonomy, enshrined in the Higher Education Act 101 of 1997, permits HEIs to develop internal disciplinary rules without direct state intervention. However, this autonomy can lead to inconsistencies in disciplinary practices and potential conflicts with students' right to administrative justice. This article examines the tension between institutional autonomy and administrative justice in student disciplinary proceedings, analysing key legal cases such as Sibanyoni v University of Fort Hare and Dyantyi v Rhodes University. The analysis reveals that while autonomy allows HEIs to tailor their disciplinary processes, it may also result in legal uncertainties and perceptions of bureaucratic inertia, potentially triggering student unrest. The article argues for a balanced approach that respects institutional autonomy while ensuring adherence to national legislation and constitutional rights, suggesting that legislative intervention may be necessary to harmonise disciplinary practices across HEIs.

Long Live The King

2024-01-27T21:12:59+00:00

Shaka kaSenzangakhona and Dingane kaSenzangakhona would have never imagined that today their descendants would engage in judicial warfare over the throne. This article analyses the cases Zulu v Mathe and Prince Mbonisi Bekithemba kaBhekuzulu v the President of the Republic of South Africa. I take the view that Prince Misuzulu (as he then was) is the rightful king of the AmaZulu. It would rather be unjust to change that position based on some procedural irregularity when prospects show even in the presence of the procedure contemplated in S 8(4) and (5) of the Traditional Leadership and Khoi-san Act he would still be King. The role played by the court in Zulu v Mathe was that of an investigative committee contemplated in the Leadership Act. As such this is the exception to such a process being mandatory. In a hypothetical situation in which Prince Simakade is a contender to the throne, he falls short due to his mother being a spinster. The equality argument is not sufficient to change his position. As such prospects of invalidating King Misuzulu’s claim to the throne seem quite low.

Keywords: Kingship, Heir, Constitution, Zulu customary law, judicial warfare, the doctrine of finality, Traditional Leadership and Khoisan Act, investigative committee.

The Impact of Apartheid on intimate partner violence in South Africa

2024-09-08T17:57:48+00:00

This research paper is about the intricate relationship between Apartheid and intimate partner violence (IPV) in South Africa. It explores how the systemic racial oppression and structural violence of that time fostered a culture of aggression that perpetuated gender-based violence (GBV), particularly IPV. Historically, violence against women (VAW) was normalized, with IPV being treated as a private issue, especially in black communities. The apartheid regime not only upheld patriarchal systems but also enforced a racial and gender hierarchy that exacerbated the plight of black women, who were doubly marginalized by both race and gender.

Our legal framework on IPV has evolved under the influence of apartheid-era ideologies, which continue to affect legislation. Despite democratic reforms and progressive legal changes, the legacy of apartheid still shapes societal attitudes towards violence against women, leading to persistently high levels of IPV. The enforcement of protective laws remains complicated by the intersection of patriarchal norms, rape myths, and deeply ingrained cultural beliefs.

Addressing these beliefs requires legislative, societal and cultural reforms. A new approach to gender-based violence is essential—one that prioritizes survivor empowerment, challenges harmful gender norms, and promotes equality to effectively combat IPV. In addition to legal measures, education and public awareness campaigns, alongside community-based interventions, are crucial in transforming societal attitudes. Ultimately, the aim of this paper is to call for ongoing efforts to dismantle the structural and cultural remnants of apartheid that continue to perpetuate violence against women in modern day South Africa.

Confidentiality vs Justice. The effect of the No Tipping Off (NTO) rule

2024-08-25T15:16:37+00:00

The NTO rule prevents certain parties from disclosing to their client when they have launched a Suspicious Transaction Report (STR) with the Financial Information Centre (FIC). This creates a dilemma for those meant to report such activity as they will have to decide which to prioritise. The good faith and trust that exists and is expected to be upheld, especially between an attorney and their client, compared to, the pursuit of justice and investigations into possible money laundering attempts and other suspicious activity. Without a clear understanding of what is expected, attorneys may face consequences from both sides as choosing either priority will exclude the other. Prioritising the relationship between the attorney and client may impede the investigation of suspicious activity and while maintaining the trust and faith of the client, may affect the greater public as it may protect a criminal’s actions. Prioritising the responsibility to report suspicious activity and not informing the client would damage the faith and openness that should exist in the relationship. This would negatively impact the public as it breaks the confidentiality and trust that the public should have in attorneys who are meant to fight for them and assist them in their time of legal need. Full transparency is often needed during the litigation process and this can be difficult without trust and if it is one sided. If no solution is decided upon then it will be up to the individual attorney which hinders legal certainty, as it would be unclear what service you would be getting when you approach an attorney. Finally, the lack of certainty for legal practitioners is distressing and needs to be addressed as it is these practitioners that are required to see the necessary growth in the legal sphere.

Epistemic injustice in court proceedings

2025-03-20T17:40:52+00:00

From calls for the equal treatment of languages to making justice more accessible, linguistic barriers to the right of access to justice persist in South Africa. While the realisation of constitutional rights is often met with considerable difficulty, a prompting question is whether the South African legal landscape can offer insight on the prevalence of specifically linguistic obstacles to the right of access to justice. This paper endorses the affirmative by arguing that linguistic barriers to the right of access to justice provide fertile ground for litigants to suffer injustice of a special kind, a kind that the philosopher Miranda Fricker calls “epistemic injustice”. Not only does the contribution aim to confront linguistic barriers to access to justice; it also seeks to elevate the status of “epistemic injustice” in South African legal discourse.

Of legal pluralism and secular constitutional centralism: Assessing the development and interpretation of living law through the lens of the Constitution

2025-08-18T10:24:04+00:00

South Africa is a multicultural society with various socio-legal systems, making it a country based on legal pluralism. Such systems take the form of customary law and cultural-religious practices. “Customary law” refers to customs and usages particular to the indigenous communities of South Africa, while “cultural-religious practices” refers to the rest of these socio-legal systems, for example Islamic law. This article examines the development of living law in the form of customary law and cultural-religious practices in South Africa through the lens of the Constitution. Although the two, customary law and cultural-religious practices, are distinct from each other, they regulate the lives of people socio-culturally. The article argues that the Constitution has become the central institution through which customary law and cultural-religious practices are interpreted, developed, and applied. In the case of customary law, the test is whether its different rules are constitutionally valid, failing which the courts will either develop it or strike it down. Where a cultural-religious practice has not been accommodated, an inquiry is conducted as to why this is so. This involves applying the test for discrimination to determine whether there are justifiable grounds for not accommodating the cultural-religious practice within the law. This article considers various instances where the development and interpretation of customary law and cultural-religious practices has been heavily dependent on the Constitution within the courts. It describes this phenomenon of subjecting of customary law and cultural-religious practices to the Constitution as “secular constitutional centralism”. The latter is an inclusionary method that seeks to incorporate various socio-legal, cultural, or religious systems under the ambit of the Constitution. In this instance the Constitution plays a central role in regulating people’s sociocultural identities. Thus, what appears to be a society based on legal pluralism is one in which its various socio-legal systems are centralised around the Constitution.

Confidentiality v Justice: The effect of the No Tipping Off rule

2025-08-18T10:07:39+00:00

The “no tipping off” (NTO) rule prevents legal practitioners from disclosing to their clients that they have filed a suspicious transaction report (STR) with the Financial Information Centre. In terms of professional conduct, this creates a dilemma between, on the one hand, fulfilling the duty to report possible money laundering and other suspicious activity and, on the other, the duty to maintain trust with the client and act in good faith. This dilemma means attorneys face possible consequences from both sides of the situation by choosing one over the other. Full transparency between legal practitioners and clients is paramount. This article examines this underexplored question and provides recommendations for potential solutions.

Misapplied and Misunderstood: The Disparities in the Use of Prodigality and its Limits

2025-08-18T10:14:25+00:00

Due to the fact that people have subjective existence, it is difficult to determine the extent to which they should allow legal concepts to influence or govern their innermost personal lives. It may be inferred from the Bill of Rights in the Constitution of the Republic of South Africa that South Africans have the right to autonomy over themselves and how they choose to lead their lives, including how they manage their own estates. A pressing issue in this regard is whether the declaration of prodigality invasively strips the prodigal of the ability to exercise his or her commercial rights and what implications this has for his or her human dignity. The state has the duty to protect all citizens, especially children (as per section 28 of the Constitution as well as the Children’s Act), and, through reasonable means, intervene when individuals fail to protect themselves. There is, however, the question of whether the state, in granting an interdict to limit a prodigal’s capacity to act and in appointing a curator bonis to administer the estate, is employing reasonable means and whether, or to what extent, individuals should allow the state to govern their personal habits. Some believe that the appointment of a curator bonis is invasive of one’s dignity, freedom, and control of one’s life. Indeed, this article argues that the law of prodigality is
outdated and needs to be developed such that its application does not infringe on a person’s right to human dignity and yet is efficacious in protecting the interests of children.

Long live the king

2025-08-18T11:16:51+00:00

Shaka kaSenzangakhona and Dingane kaSenzangakhona would never have imagined that today their descendants would engage in judicial warfare over the throne. This article analyses the cases Zulu v Mathe and Prince Mbonisi Bekithemba kaBhekuzulu v the President of the Republic of South Africa. I take the view that Prince Misuzulu (as he then was) is the rightful King of the AmaZulu. It would be unjust to change that position based on some procedural irregularity when even in the presence of the so-called correct procedure contemplated in section 8(4) and (5) of the Traditional Leadership and Khoi-San Act, he would still be king. The role played by the court in Zulu v Mathe was that of an investigative committee contemplated in the Leadership Act. As such, this is the exception to such a process being mandatory. In a hypothetical situation in which Prince Simakade is a contender to the throne, he falls short due to his mother’s being a spinster. The equality argument is not sufficient to change his position. As such, the prospects of invalidating
King Misuzulu’s claim to the throne seem quite scant.

Can stronger laws and regulations safeguard children’s rights by preventing child marriages?

2025-08-18T10:58:41+00:00

Child marriage refers to the union of two individuals, one or both of whom are under the age of 18. The minimum age for boys which is 14, and for girls, 12, is inconsistent with the right to equality. Despite the South African Constitution’s emphasis on cultural rights, child marriage infringes on the basic rights of minors, which include the right to education, health, equality, privacy, freedom, and security. Child marriages often result in forced cohabitation, early pregnancy, and increased risk of rape. The prohibition of child marriages is crucial to safeguarding the well-being and dignity of children. Efforts to abolish child marriages must address cultural sensitivities while prioritising the rights and protection of minors. This article examines the effectiveness of current laws in safeguarding children’s rights and argues for the abolition of child marriage. The Recognition of Customary Marriages Act and the Marriages Act allow for child marriages with parental or ministerial consent, perpetuating this harmfulpractice. Through analysis of case law, the article highlights the devastating consequences ofchild marriage, including sexual assault and deprivation of education. The article recommends
strengthening existing laws, setting a suitable minimum age for marriage, and conducting awareness campaigns to educate communities about the harmfulness of child marriage. Ultimately, this article asserts that the abolition of child marriages is crucial for upholding the principles, spirit and purport of the Bill of Rights contained in the Constitution. By prioritising children’s rights and well-being, South Africa can work towards eradicating this harmful practice and ensuring a brighter future for its children.

The Impact of Apartheid on intimate partner violence in South Africa

2025-08-28T13:06:26+00:00

This article explores the intricate relationship between apartheid and intimate partner violence (IPV) in South Africa. It examines how racial oppression through institutions and systemic violence established a culture of violence and aggression that institutionalised gender-based violence (GBV), including domestic violence (DV) and IPV. Previously, violence against women (VAW) had been normalised, with IPV treated as an individual issue, particularly within black communities. Apartheid reinforced not only a patriarchal system but also a racial and gendered hierarchy that further excluded black women, who were doubly disadvantaged on the basis of both their race and gender. South African IPV legislation evolved in the long shadow of apartheid ideas that are still reflected in existing laws. Despite democratic change and liberal reform to laws, the shadow of apartheid persists, as evidenced by IPV statistics and societal attitudes towards the abuse of women. Addressing this requires a multi-faceted approach entailing legal, social, and cultural reform supported by education, awareness campaigns, and community interventions to combat crimes such as IPV.

International co-operation in criminal matters in South Africa: A comprehensive analysis of mutual legal assistance and extradition

2025-08-28T13:14:14+00:00

This article examines legal frameworks and mechanisms of international co-operation in criminal matters, focusing on mutual legal assistance (MLA) and extradition, with a particular emphasis on South Africa’s role within the global legal community. It explores the effectiveness of South Africa’s legislative and judicial systems in facilitating international criminal justice, especially in combatting transnational crimes such as terrorism, drug trafficking, and human trafficking. By analysing the International Co-operation in Criminal Matters Act 75 of 1996 and its regulations, alongside key international treaties such as the United Nations Convention against Corruption, this article assesses the adequacy of existing legal provisions and the challenges faced in implementing MLA and xtradition. It highlights the complexities involved in the extra-territorial application of South African law and the potential for legal reform to improve international co-operation. Through a review of case law, legislation, and international agreements, the article proposes recommendations for improving the efficiency and effectiveness of MLA and extradition processes in South Africa to ensure they meet the evolving demands of global criminal justice.

Feminist spatial justice: Women’s informal trader movements are re-imagining the city

2025-12-17T08:02:59+00:00

Colonialism attempted to systematically erase black women and labour from the city imaginary. Under apartheid, this was enforced primarily through the Group Areas Act; now, in post-apartheid South Africa, women street traders have emerged as the largest group of informal traders in the Global South, yet the economy positions them as marginal to the formal labour system. As a result, exclusionary and systemic violence is inflicted upon them by the state. The Constitution of South Africa, 1996, along with the Businesses Act 51 of 1993, presents an opportunity to protect the legitimacy of these traders’ struggles for survival.
This article seeks to answer the question: How could women street trader organisations be used to advocate for the inclusion of women street traders in South African city imaginaries? The article draws on decolonial feminist theory to address this question. It first interrogates oppressive ideals concerning the use of urban space and examines how this impacts on women street traders. Additionally, it emphasises the insights of women street traders, insights shaped by their lived experiences within the city. This article recognises that women street traders are already organising, on the basis of case law and other avenues, to resist oppressive urban ideals. Furthermore, it acknowledges their use of decolonial-feminist organising as a way to assert their agency and human dignity. The article concludes by calling for a stronger movement to empower women street traders politically and economically, emphasising the need for inclusive city imaginaries that recognise and celebrate their contribution to the urban landscape. Through collective action and advocacy, the potential exists to create spatially just cities that uplift the dignity and rights of women street traders in South Africa.

Institutional autonomy and the administration of student disciplinary processes in public HEIs

2025-12-17T08:14:12+00:00

South African public Higher Education Institutions (HEIs) enjoy a great amount of institutional autonomy that allows them to govern their own affairs. Institutional autonomy is enabled by the Higher Education Act 101 of 1997, which permits HEIs to develop institutional student disciplinary rules without the requirement of state approval. Institutional autonomy, however, can lead to inconsistencies in the administration of student discipline across HEIs and create the risk of violation of students’ right to administrative justice. This article examines the tension between institutional autonomy and administrative justice in student disciplinary proceedings, analysing key review cases wherein students and, in certain cases, former students litigated against their HEIs. The analysis reveals that while institutional autonomy allows HEIs to tailor their disciplinary processes, it may also result in legal uncertainty and perceptions of bureaucratic inertia that trigger student unrest. The article argues for legislative reform as a necessity to harmonise the administration of student discipline across HEIs.

Linguistic barriers on trial: ‘Epistemic (in)justice’ as a tool for safeguarding access to justice and procedural rights in the courtroom

2025-12-17T08:30:58+00:00

From calls for the equal treatment of languages to making justice more accessible, linguistic barriers to the right of access to justice persist in South Africa. Not only is English the only official language of court record, but it is also the dominant language in which legal information is available in South Africa. Even with interpretation services in court proceedings, forensic linguists have highlighted the inherent shortcomings of translation and how these impact the right of access to justice. This raises the question of whether the South African legal landscape can offer insight on linguistic obstacles to the right of access to justice. This article endorses the affirmative, arguing that linguistic barriers to the right of access to justice provide fertile ground for litigants to suffer injustice of a special kind: what the philosopher Miranda Fricker calls “epistemic injustice”. In epistemic injustice, a speaker is unable to articulate experiences not recognised in a society’s dominant conceptual pool. Epistemic injustice proves to be an important concept for the field of law in that it clarifies socio-linguistic aspects of the court experience in a way that objective law cannot do on its own. The concept therefore offers a jurisprudential basis upon which to better understand and respond to linguistic barriers in the court process. In effect, this contribution aims to not just confront linguistic barriers to access to justice; it also seeks to elevate the status of ‘epistemic injustice’ in South African legal discourse.

Conflict dynamics in human trafficking and child soldiering

2025-12-17T08:37:00+00:00

In Sierra Leone and Afghanistan, prolonged conflicts had fostered environments that were conducive to both child soldiering and human trafficking. Such conditions not only undermined the right to personal security, but facilitated the exploitation of children through forced labour, sexual coercion and conscription into armed conflict. In this context, children who were inherently predisposed to violence, poverty and desperation often became subjects of abuse for economic and strategic gain by armed groups and human traffickers. Notwithstanding this recognition, the prevalence of these human rights violations have frequently been treated as two distinct phenomena in existing literature. As a result, there remains a significant absence of consideration in relation to the socio-economic conditions, cultural practices and geopolitical instabilities that render child soldiering and human trafficking as deeply interconnected issues.
The convergence of these two concerns, however, is not merely coincidental. Rather, the historical, social and legal contexts of both protracted wars reveal a broader breakdown of social structures, legal frameworks and enforcement mechanisms that were meant to protect children from manipulation, exploitation and violence. Beyond the need for a comprehensive approach to address the circumstances that fuel these abuses, the link between child soldiering and human trafficking requires integrated legal reforms, improved international collaboration and effective policies to bolster the resilience of vulnerable communities plagued by warfare. It is only by addressing the structural forces that sustain these violations that the global community can hope to break the cycle of exploitation and ensure a safer future for children in conflict zones.

Letter of support: African Student Law Journal publication

2025-08-28T13:41:41+00:00

The Faculty of Law at the University of the Western Cape fully endorses the publication of the African Student Law Journal (ASLJ). This student-centred initiative creates a platform to facilitate student research through the ASLJ, which fits neatly into the University of the Western Cape’s (UWC) current Institutional Operating Plan (IOP) as well as the Faculty’s Strategic Plan.

After all, in an increasingly competitive environment, it is by design that the Faculty supports the publication of peer-reviewed student research to further debate in the field, and inform law, policy, and practice. It is notable that, world-wide, academic engagement is in part based on exposure to published research which enhances and strengthens students’ research skills, critical thinking, and experience. By focusing on undergraduates and master's students, and their contributions to current legal debates through publications, students are called upon to think outside the box, identify the issues which have ignited debate in recent times in the various areas of law, and add their voice to these contemporary issues. Thus, the Journal provides a platform for undergraduate and master's students to suggest solutions to the problems confronting the world, particularly Africa and the rest of the Global South.

With this as a backdrop, we look forward to increased collaboration and engagement on the African continent to widen the reach and impact of the ASLJ.

Letter from the Editor

2025-08-29T09:40:52+00:00

Welcome to the inaugural issue of the African Student Law Journal (ASLJ), a platform created to amplify the voices of emerging legal scholars and foster a culture of intellectual inquiry. The ASLJ was launched in November 2023 and proudly publishes its first issue in September 2025. It was established to enhance the visibility of undergraduate and master’s students by providing a space where their ideas can take shape and be heard.

From the outset, our vision has been clear. We sought to create a developmental space where students could engage with the law critically and creatively, and where every contribution would be valued for the voice it brings to the ongoing conversation. We did not want a journal that catered only to those who already write with polish and confidence. Instead, we aimed to build a platform where every student, regardless of experience, could explore ideas, test arguments, and contribute to the conversations shaping African legal scholarship.