Pretoria Student Law Review 2019-13

Primrose Egnetor Ruvarashe Kurasha, Thato Petrus Maruapula, Mzwandile Ngidi, Frieda Shifotoka

Description

Honoured to be the first black Editor-in-Chief of the University of Pretoria’s Law Review, an annual publication which is the pride of the best law faculty in Africa (according to the Times Higher Education World University Rankings), I proudly present to you the 2019 edition of the Pretoria Student Law Review (PSLR).As I reflect on how the 17 year old me decided to one day become the President of the Law Review of ‘whichever’ tertiary institution I found myself at, after having been inspired by the first black Harvard Law Review President, President Barack Obama, who was appointed as such a year before my birth, I stand amazed at how inspiration and vision are literally a foretaste of a future God would have predestined for one, in this case mine.With a vision to create a boldly outlined legacy for the PSLR, I spearheaded the setting up of systems that would last the lifespan of the PSLR, with my main focus as Editor-in-chief being on branding and operations. I am proud to announce that as the PSLR we now have our official email address; website; annual calendar; set dates for the publishing of our annual ‘Call for Submissions’ and annual ‘Call for Applications’ for the PSLR Editorial Board; official communication templates used for correspondence with our stakeholders namely, the Reviewers, the authors, the Editors and the public at large; sound disciplinary procedures and a significant social media presence. A consistent teammate in bringing this to fruition was Dr Gustav Muller, in his capacity as the PSLR Guardian.Building on last year’s legacy, for the first time in its history, the PSLR used the same cover consecutively in different years, namely 2018 & 2019. It is at this juncture that I would like to acknowledge vi and thank my predecessor, Mr Jürgen Zwecker, for the legacy he created for the PSLR, specifically in terms of its image and the foundation he laid for its branding. A legacy I have only been too glad to build upon and continue. To our photography genius Adebayo Okeowo, thank you very much for your exceptional cover art. Our conference calls between New York and Pretoria, with an emphasis on the different time zones which we managed remarkably well, yielded fruit.Having thoroughly read each article and footnote in this edition, dotted every ‘i’ dotted and crossed every ‘t’, I cannot help but marvel at the culture of robust debate, research and relentless fact-finding cementing and holding together the identity of the University of Pretoria’s Law faculty. The sharp legal minds it has moulded, may they forever be emblematic of the excellence, critical thinking and fruits of pluralism, cultural integration and transformation, which not only define the faculty but which will further entrench its spot on the world map. This PSLR edition also brags of articles from sister institutions and other African countries, as has been the case with previous editions.It would be out of character for me not to acknowledge my exceptional team of Editors who committed to making this a quality publication, backing and forthing with the authors and reviewers. Thank you Thato Maruapula, Mzwandile Ngidi and Frieda Shifotoka! To the reviewers, your adjudication laid the foundation for this year’s PSLR edition and we are grateful to you, especially for doing so gratuitously. To the authors, you have started your publishing career on a remarkable note. To Lizette Hermann and Elzet Hurter, your dedication to the PSLR for over a decade, has us as the Editorial Board and the Law Faculty forever indebted.To the renowned philosopher and theologian hailing from Georgetown University and New York University, who introduced me to publishing, my dear father Prof Jemison Kurasha, ndinotenda Mukanya (thank you Dad, father of the clan). To my exceptional mentor and late mother, the first female Pro-Vice Chancellor and Vice Chancellor in Zimbabwe, a world renowned academic and diplomat par excellence, you were wise and diligent enough to build a legacy which has outlived you Prof Primrose Kurasha, all by the grace of God. My dear sister, best friend and Economist of note, Flora M.N. Kurasha, your knees keep me standing.Dear reader, enjoy the read!Primrose Egnetor Ruvarashe Kurasha Editor-in-Chief 2019

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2019
• Nombre de lectures: 0
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

PRETORIA STUDENT LAW REVIEW (2019) 13

Pretoria Tydskrif vir Regstudente Kgatišobaka ya Baithuti ba Molao ya Pretoria

Editor-in-chief: Primrose Egnetor Ruvarashe Kurasha

Editors: Thato Petrus Maruapula Mzwandile Ngidi Frieda Shifotoka

2019

(2019) 13 Pretoria Student Law Review

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: Minit Print, Hatfield, Pretoria

Cover: Design by Adebayo Okeowo

To submit articles, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

ISSN: 1998-0280

© 2019

TABLE OF CONTENTS

Editors’ note: Legacy by Primrose Egnetor Ruvarashe Kurasha

Tribute

Note on contributions

Restoring electricity use with the spoliation remedy: A critical comment onEskom Holdings Soc Ltd v Masinda by Gustav Muller

Prescription: The present interpretation of extinctive prescription and the acquisition of real rights by Celinhlanhla Magubane

v

vii

viii

1

17

To be black and alive: A study of the inherent racism in the tertiary education system in post-1994 South Africa 27 by Chelsea L. Swanepoel

Through thick and thin: From the regulation of queerness to queer theory as decolonisation by DJ van Wyk

40

The easy way out? Constitutional avoidance and its impact on human right enforcement in Botswana 58 by Kago K.Y. Boiki

Looking to literature for transformation by Kayla Thomas

74

A discussion of intellectual history, jurisprudential theories and feminism in the eradication of epistemic violence in South Africa 88 by Kiasha Pilla

Abstract v substantive-equality — A critical race theory analysis of ‘hate speech’ as considered in the SAHRC-Report on utterances made by Julius Malema 97 by Kyle Grootboom

A critical race feminist reading of the South African property law 115 by Laetitia Makombe

iii

Should the flag fit, or must we acquit? by Nicholas Herd

130

The impact of the 4th Industrial Revolution on the employment relationship and adaptive skills requirements 155 by Odirile Sepeng

The role of law and governance in advancing climate resilience and climate justice 163 by Otitoola Olufolajimi

Case note: Stepping in the right direction towards fully realising the constitutional promise of Section 29(1)(a) of the Constitution 197 Federation of Governing Bodies for South African Schools (FEDSAS) v Member of the Executive Council for Education, Gauteng and Another 2016 (4) SA 546 (CC) by Philile Shandu

The feminist agenda, a fall of hierarchal redressoran attempt to establishing an ‘equal’society gone wrong: An internal critique to feminist theories 208 by Simon Motshweni

Subaltern responses to epistemic violence; the legacy of colonialism 222 by Siwelile S. Mkhwanazi

iv

EDITORS’ NOTE: LEGACY

by Primrose Egnetor Ruvarashe Kurasha

Honoured to be the first black Editor-in-Chief of the University of Pretoria’s Law Review, an annual publication which is the pride of the best law faculty in Africa (according to the Times Higher Education World University Rankings), I proudly present to you the 2019 edition of thePretoria Student Law Review(PSLR).

As I reflect on how the 17 year old me decided to one day become the President of the Law Review of ‘whichever’ tertiary institution I found myself at, after having been inspired by the first black Harvard Law Review President, President Barack Obama, who was appointed as such a year before my birth, I stand amazed at how inspiration and vision are literally a foretaste of a future God would have pre- destined for one, in this case mine.

With a vision to create a boldly outlined legacy for thePSLR, I spearheaded the setting up of systems that would last the lifespan of thePSLR, with my main focus as Editor-in-chief being on branding and operations. I am proud to announce that as thePSLRwe now have our official email address; website; annual calendar; set dates for the publishing of our annual ‘Call for Submissions’ and annual ‘Call for Applications’ for thePSLRBoard; official communication Editorial templates used for correspondence with our stakeholders namely, the Reviewers, the authors, the Editors and the public at large; sound disciplinary procedures and a significant social media presence. A consistent teammate in bringing this to fruition was Dr Gustav Muller, in his capacity as thePSLRGuardian.

Building on last year’s legacy, for the first time in its history, the PSLRthe same cover consecutively in different years, namely used 2018 & 2019. It is at this juncture that I would like to acknowledge

v

and thank my predecessor, Mr Jürgen Zwecker, for the legacy he created for thePSLR, specifically in terms of its image and the foundation he laid for its branding. A legacy I have only been too glad to build upon and continue. To our photography genius Adebayo Okeowo, thank you very much for your exceptional cover art. Our conference calls between New York and Pretoria, with an emphasis on the different time zones which we managed remarkably well, yielded fruit.

Having thoroughly read each article and footnote in this edition, dotted every ‘i’ dotted and crossed every ‘t’, I cannot help but marvel at the culture of robust debate, research and relentless fact-finding cementing and holding together the identity of the University of Pretoria’s Law faculty. The sharp legal minds it has moulded, may they forever be emblematic of the excellence, critical thinking and fruits of pluralism, cultural integration and transformation, which not only define the faculty but which will further entrench its spot on the world map. ThisPSLRalso brags of articles from sister edition institutions and other African countries, as has been the case with previous editions.

It would be out of character for me not to acknowledge my exceptional team of Editors who committed to making this a quality publication, backing and forthing with the authors and reviewers. Thank you Thato Maruapula, Mzwandile Ngidi and Frieda Shifotoka! To the reviewers, your adjudication laid the foundation for this year’s PSLRand we are grateful to you, especially for doing so edition gratuitously. To the authors, you have started your publishing career on a remarkable note. To Lizette Hermann and Elzet Hurter, your dedication to thePSLRfor over a decade, has us as the Editorial Board and the Law Faculty forever indebted.

To the renowned philosopher and theologian hailing from Georgetown University and New York University, who introduced me to publishing, my dear father Prof Jemison Kurasha, ndinotenda Mukanya (thank you Dad, father of the clan). To my exceptional mentor and late mother, the first female Pro-Vice Chancellor and Vice Chancellor in Zimbabwe, a world renowned academic and diplomat par excellence, you were wise and diligent enough to build a legacy which has outlived you Prof Primrose Kurasha, all by the grace of God. My dear sister, best friend and Economist of note, Flora M.N. Kurasha, your knees keep me standing.

Dear reader, enjoy the read!

Primrose Egnetor Ruvarashe Kurasha Editor-in-Chief 2019

vi

TRIBUTE

This specific PSLR edition is a tribute to the former Dean of the Law Faculty of the University of Pretoria, Prof Andre Boraine.

For promoting thePretoria Student Law Review (PSLR) so well, that it has been acknowledged by and nominated for the Yunus Mahomed Public Interest Law award in consecutive years, thank you Prof.

For presiding over our faculty in a manner so sound, that saw it becoming the best law faculty in Africa in 2018, according to the Times Higher Education World University Rankings, you also promoted thePSLRand enhanced its readership. Again, thank you Prof.

For being an exceptional Guardian of thePSLR, ever-supportive and more than willing to offer much needed truth, tough talk and solid guidance, thank you Prof Boraine.

vii

NOTE ON CONTRIBUTIONS

We invite all students to submit material for the eleventh edition of thePretoria Student Law Review. We accept journal articles, case notes, commentary pieces, response articles or any other written material on legal topics. You may even consider converting your research memos or a dissertation chapter into an article. Please visit our website at www.pslr.co.za for more information. You may submit your contribution to: [e-mail] Alternatively you may submit your contribution by hand at the office of the Dean of the Law Faculty: Dean’s Office Faculty of Law 4th Floor Law Building University of Pretoria Pretoria 0002

viii

RESTORING ELECTRICITY USE WITH THE SPOLIATION REMEDY: A CRITICAL COMMENT ON ESKOM HOLDINGS SOC LTD V MASINDA

1

Introduction

byGustav Muller*

1 InEskom Holdings SOC Ltd v Masinda (‘Masinda’) teams from the appellant removed various illegal connections to the national electricity reticulation grid. The removal was animated by a concern for the well-being of those people living in homes with illegal connections and to prevent damage to their property as a result of 2 these dangerous connections. While the exact reasons for the removal of the illegal connections were not clearly articulated in the appellant’s submissions, it appears that the connections constituted an immediate danger to the public because the equipment were too small; it did not meet the prescribed quality standards; and it was not 3 installed by an authorised contractor. The respondent argued that she used the electricity in her home by drawing supply through a prepaid meter and that this supply constituted an incident of her occupation. She successfully sought the restorationante omniaof the electricity supply to her home in the Eastern Cape Division of the High 4 Court, Mtatha. On appeal Leach JA reasoned that it could not have

*

1 2 3 4

LLB LLD (Stellenbosch University), Diploma (Åbo Akademi). Senior Lecturer in the Department of Private Law, University of Pretoria. ORCID: 0000-0003-1254-6601. 2019 (5) SA 386 (SCA). Masindapar 2. Masindapar 3. Masindapar 9.

1

2Critical comment onEskom Holdings Soc LTD v Masinda

been the intention of the courta quoto order the restorationante omniaof a connection ‘that was unlawful and a danger to the public.’ Restorationante omnia that ‘complied with the necessary requirements of safety’ would not only have required the appellant to 5 do something more than restoring the property to its former state, but also extended the purpose of the spoliation remedy to include the 6 7 ‘reconstituted equivalent’ of the specified property. However, if the courta quointended the restorationante omniaof an unlawful 8 and dangerous electricity supply, the further difficulty would be that the order would be directing the appellant to ‘commit an illegality’ which itself would be sufficient for a court to refuse the spoliation 9 remedy. Finally, Leach JA reasoned that the mere existence of an electricity reticulation supply in the respondent’s home is insufficient 10 to afford her a right that qualified as an incident of her occupation. 11 He therefore upheld the appeal and dismissed the respondents 12 ‘terse’ claim as ‘misplaced’ and ‘insufficient’.

In this article I provide a critical comment on theMasinda judgment. I seek to do so by providing a brief exposition of the importance of having access to and being able to stop unlawful interfere with your access to electricity in part 2. In part 3 I set out the requirements, features and application of themandament van spolie. This is followed in part 4 with an analysis of the growing jurisprudence (comprising two high court judgments that predate democracy and two judgments from the Supreme Court of Appeal in the past decade) where themandament van spoliewas used to seek restorationante omniaof electricity use.

2

The importance of electricity from a human rights perspective

13 InGovernment of the Republic of South Africa v Grootboom (Grootboom), Yacoob J provided a nuanced exposition of the obligations that flow from section 26 of the Constitution. In his analysis the right of access to adequate housing entails ‘more than bricks and mortar’. Importantly, this includes access to:

5 6

7 8 9 10 11 12 13

SeeZinman v Miller1956 (3) SA 8 (T). Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality 2007 (6) SA 511 (SCA) par 24. See alsoNgomane v City of Johannesburg Metropolitan Municipality [2019] 3 All SA 69 (SCA) par 18–20 andRikhotso v Northcliff Ceramics1997 (1) SA 526 (W) at 535B–C. Masindapar 10. Masindapar 12. Masindapar 13. Masindapar 22. Masindapar 27. Masindapar 24. 2001 (1) SA 46 (CC).

(2019) 13 Pretoria Student Law Review 3

available land,appropriate servicessuch as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, 14 there must be services, [and] there must be a dwelling.

Yacoob J’s description of what it means to have access to adequate housing in South Africa — in particular, services like electricity — 15 resembles one of the characteristics that the United Nations 16 Committee on Economic, Social and Cultural Rights (‘CESCR’) identified as being indicative of having access to housing for purposes 17 of article 11(1) of the International Covenant on Economic, Social 18 and Cultural Rights (‘ICESCR’). Housing, according to the CESCR, will be considered adequate if itinter aliaprovides access to:

certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of 19 food storage, refuse disposal, site drainage and emergency services.

Conceptualising access to services — like and electricity — as an integral part of the right of access to adequate housing reinforces Yacoob J’s contextual approach to the interpretation of section 26 of 20 the Constitution. On the one hand, the approach forges explicit 21 textual links with section 32 of the Constitution. In doing so the

14 15

16

17

18

19

20 21

Grootboompar 35 (emphasis added). Despite the ‘significant’ textual differences that Yacoob J enumerated in Grootboompar 28. The committee consists of 18 experts with internationally recognised competence in the field of human rights who serve in their personal capacity for a renewable four year term. The primary task of the Committee is to assist the Economic and Social Council with its consideration of the reports that States Parties submit to the Secretary-General of the United Nations (article 16(2) of the ICSECR). Article 11(1) of the ICESCR, which affords everyone the right to an adequate standard of living, reads: ‘The States Parties to the Present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co- operation based on free consent.’ 993 UNTS 3. The Covenant was adopted by the General Assembly of the United Nations on 16 December 1966 and came into force on 3 January 1976. As at 19 June 2019, the Covenant has been ratified by 169 countries. South Africa signed the Covenant on 3 October 1994 and ratified it on 15 January 2015. CESCRGeneral Comment 4: The right to adequate housing (Art 11(1)), UN Doc E/ C 1992/23 (1991) par 8(b). Grootboompar 21. Section 32(1) of the Constitution affords everyone ‘the right of access to – (a) any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.’ The Promotion of Access to Information Act 2 of 2000 was enacted to give effect to section 32(2) of the Constitution. See, in general, Currie I and De Waal JThe Bill of Rights Handbooked (2013) chapter 30; Klaaren J and Penfold G ‘Access to 6th Information’ in Woolman S, Bishop M and Brickhill J (eds)Constitutional Law of South Africa2nd ed, chapter 62.