Academy of Science of South Africa (ASSAf): Open Journal Systems
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Hate Speech in the Equality Act Following the Constitutional Court Judgment in Qwelane v SAHRC
No full textIn its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy
Liquified petroleum gas provides a technically viable and financially feasible means to reduce Eskom’s diesel cost burden by 30% to 40%
No full textLessons learned: reacting, rebounding and recovering from dental clinical failures
Get PDFDental professionals all endeavour to provide their patients with the best possible care, utilising their skills, knowledge and experience to ensure positive results. Nevertheless, despite their best efforts, dental clinical failures can occur, leaving the patient and dentist to deal with the repercussions. In this article, we will discuss how to react, regroup and recover from dental clinical failures, drawing from strategies for dealing with the aftermath and learning from these experiences. A proactive and compassionate approach is necessary when addressing dental clinical failures. It is essential to acknowledge and address the situation promptly and professionally. The first stage is to communicate openly and honestly with the patient, providing a detailed explanation of what went wrong, accepting responsibility for the failure, and expressing genuine compassion for the patient’s concerns and emotions. Dentists should also engage in self-reflection and self-evaluation, conducting an objective analysis of the failure and determining its fundamental cause. Colleagues, mentors and professional organisations can provide valuable insight and direction when consulted
THE APPLICATION OF DERIVATIVE MISCONDUCT IN THE WORKPLACE: A CRITICAL ANALYSIS OF National Union of Metalworkers of South Africa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Limited 2019 (5) SA 354 (CC)
No full textIn modern South African law, employees have several fundamental rights, the right to strike being one of those rights. This right is enshrined in the Constitution of the Republic of South Africa, 1996 (the Constitution) and also in the Labour Relations Act 66 of 1995 (the LRA); both statutes provide that every employee has the right to strike (s 64(1) of the LRA and s 23(2)(c) of the Constitution). However, for a strike to be protected as legal strike action, at least 48 hours’ notice of the commencement of the strike must be given, in writing, to the employer (s 64(1)(b) of the LRA). If employees misconduct themselves – for example, engage in acts of violence during a protected strike – the employer is entitled to dismiss those employees on the grounds of misconduct (Schedule 8, item 7 of the Code of Good Practice under the LRA). However, if the employer is unable to identify the responsible employees (the perpetrators), the question is whether the employer can request other employees to identify the perpetrators. If the answer to this is yes, the next question is whether the employer can dismiss these employees if the employees do not want to identify the “perpetrators”.To answer these questions, employers have relied on the principle of “derivative misconduct” to discipline employees during strike action where employees responsible for misconduct cannot be identified and other employees fail, when requested, to come forward and assist the employer to identify those responsible. Derivative misconduct is a principle that is neither defined nor appears in any labour legislation. It has been developed by the courts and used by employers as a concept to require an employee to come forward and give information about other employees who have misconducted themselves during protest action. Since derivative misconduct is not defined in labour legislation, a consideration of the judgments that have considered the scope and application of this principle on a particular set of facts demonstrates the difficulties of its application. Before the Constitutional Court judgment in NUMSA obo Khanyile Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd (2019 (5) SA 354 (CC)), several judgments attempting to develop or clarify the concept either found derivative misconduct did not exist on the particular facts or just expressed obiter views on the issue. This led to varying decisions on the application of derivative misconduct. The Constitutional Court has now finally sought to articulate and grapple with this concept
A Brief Analysis of the Judgment in Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)
No full textOn 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children
Traditional Authorities and State Functions in South Africa: A Complex Relationship of Private Participation?
No full textThis contribution explores the relationship between traditional authorities and state functions in South Africa. The authors argue that traditional leaders, while not organs of the state, have functions similar to state functions, especially on a local government level. The authors suggest that this relationship can be characterised as a form of private participation in exercising state functions, although it does not amount to full privatisation. The recognition of traditional law systems in the Constitution and relevant legislation provides a legal basis for this relationship. The authors also examine the role of public-private agreements in enhancing legal certainty and clarity. Finally, the authors consider the potential benefits of transforming traditional authorities into state organs, aiming to promote the development of traditional communities and enhance the delivery of essential services
Bacterial contamination of curing light guides: prevalence and students’ knowledge and awareness of measures to maintain sterility
Get PDFIt is generally accepted that inadequately sterilized dental curing light guides pose risks of infection and cross contamination.To determine the presence and level of bacterial contamination among curing light guides used by students during patient care at a dental school in South Africa and to describe students’ knowledge and awareness of measures used to maintain their sterility. A two-part descriptive study consisting of microbiological testing and a cross-sectional survey. Swabs were collected from curing light guide tips before and after use for aerobic culture and a questionnaire was used to collect data pertaining to students’ knowledge and awareness of measures used to maintain their sterility. The prevalence of contamination increased after use (54.5% vs 45.5%). Grades of bacterial growth higher than 1+ were not detected. Isolated bacteria were contaminants. The response rate for the questionnaire was 42.5%. Fifth-year students were overall more knowledgeable than fourth-year students (81.6% vs 67.5%) and were more aware of the existence of the different types of disposable barriers (27.5% vs 12.8%) and the impact of infection control barriers on curing light intensity (52.4% vs 15%). Contamination occurred despite high levels of knowledge and awareness of the risk
What’s new for the clinician – summaries of recently published papers
Get PDFStress, according to the World Health Organization, can be defined as a state of worry or mental tension caused by a difficult situation. Stress is a natural human response that prompts us to address challenges and threats in our lives. Everyone experiences stress to some degree. The way we respond to stress, however, makes a big difference to our overall well-being. Occupational stress, defined as when the resources of an individual are not sufficient to cope with the needs of a situation, is a leading modern health and safety challenge
AN ANALYSIS OF RIGHTS OFFERS: THEIR ADVANTAGES AND DRAWBACKS
No full textA rights offer is a useful mechanism for raising fresh corporate finance, particularly for a listed company with a wide shareholder base. The regulation of rights offers in South African law is critically analysed in this article. This is followed by a comparative analysis of rights issues in the United Kingdom and in Australian law. The advantages and drawbacks of rights issues in practice are also discussed, with reference to recent rights offers launched by prominent JSE-listed companies
Exploring Information Needs and Diverse Sources for the Growth and Sustainability of the South African Honeybush Industry
No full textHoneybush is an indigenous fynbos shrub with the potential to contribute significantly to socio-economic development in rural South Africa. However, there exists a knowledge gap on the types of information that role players in this emerging agricultural sector need to produce quality honeybush tea efficiently, as well as their preferences for obtaining information and guidance materials. A survey of 44 role players along the Honeybushsh value chain was conducted to determine the nature of the information they require and their preferred communication formats. The results show that the most pressing need is information about general honeybush cultivation, followed by detailed guidance on cultivating different species and implementing quality management systems, such as organic certification. Respondents also highlighted the urgency of improving consumer awareness of honeybush tea. Other information related to sustainable cultivation practices, enhancing the industry’s sustainability and helping with marketing. Respondents preferred information from research institutions and wanted to receive the information in a face-to-face (interpersonal) format. These findings could help to improve agricultural extension and fill knowledge gaps in the South African honeybush industry