African Student Law Journal

Letter of support: African Student Law Journal publication

Benyam Dawit Mezmur — 2025-09-03

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

Carmel Jacobs — 2025-09-03

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.

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

ANOPA TAMUKA MURAMBIWA — 2025-09-03

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

KEALAN LAYMAN — 2025-09-03

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

TEBELLO MATLALA — 2025-09-03

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

ANOPA TAMUKA MURAMBIWA — 2025-09-03

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?

MAXINE SMITH — 2025-09-03

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

JULIETTE E. DANIELS — 2025-09-03

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

KUSELO BOOI — 2025-09-03

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

THANDOLWETHU NOFOMELA — 2025-12-17

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

SIYABONGA MPUMELELO SGUDLA — 2025-12-17

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

MCNIEL ZIMRI — 2025-12-17

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

CAILYN DALIA SCHAFFER — 2025-12-17

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.