Research Articles (Procedural Law)

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Humans v machine : The AFSA-UP moot court experiment with ChatGPT 4.0 (April 2024)
Baboolal-Frank, Rashri; Papadopoulos, Sylvia; Schoeman, Elsabe (Pretoria University Law Press, 2025)
The legal profession is being challenged to harness the predictive capabilities of AI as a fundamental tool reshaping the future of law. New technologies require a reimagining of the essence of legal services. Against this background, the University of Pretoria, Faculty of Law was invited to use ChatGPT to generate an arbitration award for the 2024 Johannesburg Arbitration Week (JAW) Young AFSA Moot. The AI-generated award was then juxtaposed with an award produced by a panel of expert human arbitrators. The primary objective of this experiment was to gauge the effectiveness and reliability of AI in producing legal judgments, a domain traditionally dominated by human expertise. This article discusses the findings and implications of this experiment, illuminating the evolving legal landscape and AI’s profound impact on the future of legal practice. It discusses the concept of generative AI and its application in law. It then explains and reflects on the arbitration award experiment. It goes on to analyse key issues as produced by ChatGPT and the human arbitrators. The article suggests several aspects that must be considered in the context of generative AI and legal practice and education. It concludes by emphasising that the integration of AI in legal practice promises to revolutionise the field, offering unprecedented efficiency and accuracy. However, for this transformation to be effective and ethically sound, both legal education and practice must evolve substantially.
Transformative methodologies for conflict resolution
Baboolal-Frank, Rashri (Nelson Mandela Metropolitan University, Faculty of Law, 2025-04-14)
Conflict resolution is embedded with complexities and different theories. In the Western systems, a formalised epistemology of conflict resolution gained traction with various known scholars in the 1950s. However, now in the twenty-first century, having moved past the humble beginnings of Western conflict resolution, it must also be noted that indigenous tribes across the world have for thousands of years used different communal methods to resolve conflict in a participatory manner for the benefit of everyone. Using such methods, we have seen the abolition of apartheid in South Africa for the benefit for all and the avoidance of civil war, upholding the principle of ubuntu, and the realisation of democracy. In a world that has moved on from World War II, it is important to use existing knowledge and theory and adapt it to the circumstances of current global conflicts. Consonant with the concept of constitutional axiology, adaptation to changes in social, political and economic circumstances ensures that the law, rule of law, and theory of conflict resolution remain relevant. Moore’s five sources of conflict, namely interest conflict, structural conflict, values conflict, information conflict and personal conflict underpin the foundations of conflict. Thomas Kilmann’s five conflict-handling styles guide a specific strategy employed such as collaborate, compromise, compete, accommodate and avoid to overcome conflict. These tactics for overcoming conflict are still used in daily relationships to defeat conflict. Using transformative methodologies to resolve conflict is the key to unlocking sustainable eradication of conflict to achieve lasting relationships without conflict impasses. Applying the rational theory and the game theory of problem-solving to the actors in known conflicts such as the war between Russia and Ukraine does not overcome the complexities of social, political and economic issues. Using a critical approach to the war complexities would go beyond the known glass ceilings and conventional paradigms of thinking to reveal infinite possible solutions. Deconstructing the notion of “just institutions” for resolving conflict as well as just being ideally suitable is technically difficult because there is a plethora of challenges that confronts these different institutions on a daily basis, and a handful of solutions also triggers more burdensome challenges to overcome. This note uses an explorative and investigative approach to propose “just” recommendations for institutions to become sustainable in maintaining conflict eradication and management of complex issues in overcoming conflict. The note’s recommendations pertain to particular institutions, mobilising private and public organisations to work harmoniously and collaboratively in providing mechanisms to overcome conflict through sharing resources and knowledge. The note encourages the upholding of treaties and conventions in the enforcement of foreign arbitral awards, and ensuring that there is no conflict of law or impossibility of enforcement before choosing the arbitral seat for determination of conflict. Compensatory mechanisms to address harm caused should also address emotional loss; compensatory functions for restoration, and reconciliatory methods do not operate in silos and should not be isolated from each other. For example, companies’ carbon emissions have had a direct impact on climate change, causing more natural disasters affecting countries, economies and losses of livelihood. However, mere compensation does not end the violation of carbon emissions regulations. Such violations may be made deliberately for economic gain, which may outweigh the paying of penalties and fines, meaning that more initiatives need to be undertaken to achieve sustainable economies and livelihoods, and not merely maximum profits that disregard expanding inequality between people and multinational companies. The note explores different types of conflict, conflict theory, and cases from arbitral forums in South Africa, the African region, and the Permanent Court of Arbitration with the aim of enhancing and improving conflict resolution methodologies.
The Road Accident Fund’s ‘without prejudice’ settlement offers on general damages : admissible admissions or inadmissible negotiation statements?
Kehrhahn, Ferdinand Heinrich Hermann (Juta Law Journals, 2025-05)
Under s 17(1), read with s 17(1A) of the Road Accident Fund Act 56 of 1996 and its Regulations, the Road Accident Fund (‘RAF’) is liable for general damages only if the RAF is satisfied that a medical practitioner has correctly assessed the injuries of a motor-accident victim as serious. The RAF’s satisfaction with the serious-injury assessment is a jurisdictional fact that must be alleged and proved if a court assumes jurisdiction to make a general-damages (non-pecuniary) award. One way to prove that the RAF has accepted the victim’s injuries as serious is by presenting evidence of the RAF’s admissions contained in extra-curial statements. However, such extra-curial statements are generally inadmissible when they are made during bona fide settlement negotiations. This article considers the without-prejudice settlement negotiation inadmissibility rule and its exceptions. It critically considers the recent judgments of Keagan, Ntsembi and Paulsen, on the one hand, where the courts held that the RAF’s settlement offers on general damages made during bona fide settlement negotiations were inadmissible evidence, and the judgments of Olivier and Van Tonder, on the other hand, where the courts held that the RAF’s settlement offer was admissible evidence. It is argued the RAF’s offer to settle general damages was correctly held in Olivier and Van Tonder to be a tacit acceptance by the RAF that the victim’s injuries were serious and that such offers are admissible evidence as an exception to the without-prejudice inadmissibility rule, thereby obviating the need to establish the required jurisdictional fact into evidence.
Parole power play : the correctional services minister’s power to revoke parole unilaterally
Curlewis, Llewelyn Gray; Carter, Katelyn-Mae (Juta Law Journals, 2025-07)
In hierdie artikel ondersoek die outeurs die besluit van Suid-Afrika se minister van korrektiewe dienste, Pieter Groenewald, om die parool van twee misdadigers wat elk tot lewenslange gevangenisstraf gevonnis is, te herroep. Frans du Toit en Theuns Kruger is in 1994 skuldig bevind aan die grusame aanval op Alison Botha. Die besluit om parool toe te staan en later weer te herroep, wat onlangs geneem is, was die eerste in sy soort. In Suid-Afrika, wat tans gebuk gaan onder geweldige hoë statistieke van geslagsgebaseerde geweld, het hierdie debat dus hernieude belangstelling ontketen. Hierdie artikel ondersoek die Suid-Afrikaanse wetlike raamwerk ten aansien van wat presies parool sou beteken, insluitend die ingewikkelde prosedurele aspekte daarvan, asook die diskresionêre bevoegdhede wat aan die minister verleen word in hierdie verband. Die verskillende soorte parool word verduidelik, met inbegrip van die faktore wat in ag geneem word tydens oorweging daarvan, asook die instansies wat verantwoordelik is daarvoor. ’n Vergelykende ontleding met paroolstelsels in Engeland en Nederland dui aan dat beduidende verskille te bespeur is, wat veral betref aspekte soos: prosedurele duidelikheid, deursigtigheid en slagofferbetrokkenheid. Voor die hand liggende tekortkominge het aan die lig gekom. Kritiek word gelewer op die potensiële misbruik van ministeriële magte in Suid-Afrika. Die daadwerklike invloed wat politieke invloed in paroolbesluite al in die verlede gespeel het, word beklemtoon. Dit wek uiteraard kommer oor die regverdigheid van paroolbesluite in die algemeen en rondom die stelsel as sulks. Met verwysing na judisiële ingrepe word gedemonstreer hoe die howe al in die verlede ministeriële besluite moes hersien het om prosedurele billikheid en grondwetlike rasionaliteit te bereik. Uiteindelik bevraagteken die skrywers of die minister se eensydige bevoegdheid om soms lukraak parool te herroep toepaslik is, gegewe die moontlike vatbaarheid vir magsmisbruik in die afwesigheid van regterlike oorsig as pertinente vereiste. Daar word aan die hand gedoen dat dit hoog tyd is dat die wetgewer moet ingryp en eens en vir altyd regsekerheid skep oor parool as sodanig. Die huidige toedrag van sake is te moeilik verstaanbaar vir beide die publiek sowel as wetstoepassers en bewerkstellig geensins eenvormigheid nie – vandaar, derhalwe die huidige gebrek in vertroue deur die samelewing jeens parool en alles daarmee saam.
Judicial reliance on documents not established into evidence : dispensing justice or injudicious overreach?
Kehrhahn, Ferdinand Heinrich Hermann (Juta Law Journals, 2024)
Documents make their way to the court file via numerous avenues. Courts sometimes rely on the contents of such documents, which are not established into evidence, to draw inferences and adjudicate disputes. The main reason for this practice is to buttress fraud committed against parties such as state organs because of their lackadaisical approach to litigation, knowing that the taxpayer foots the bill. Some courts go so far as to suggest that the court should employ an inquisitorial approach in matters involving state organs or even take a partisan approach. Noble as the court’s intentions hopefully may be, several policy decisions point to the undesirability of this practice. This note considers, first, the general rule that a document in the court file is inadmissible hearsay evidence until it is established into evidence; secondly, the reasons why a court would have regard to such non-evidence; thirdly, the policy reasons justifying the general rule; and, fourthly, the recent misplaced suggestion that documents may more readily be admitted into evidence under the common-law exception to the rule against hearsay evidence or under s 34(2) of the Civil Proceedings Evidence Act. Recommendations to remedy this objectionable practice conclude the note.
The role of expert evidence in civil litigation : a critical analysis (Part 1)
Bekker, Petrus Thino (University of the Free State, 2023-07)
Section 34 of the Constitution of the Republic of South Africa provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. A number of foundational principles that underlie the South African law of civil procedure had been afforded express recognition by this section. One of these principles entail that the duration and costs of civil litigation should be reasonable. In the past decade, or so, there have been several initiatives to give effect to this ideal of civil justice for all. Despite this, there are still several impediments in the South African law that causes civil trials too be exorbitant and time-consuming. One of these impediments relate to the presentation of expert evidence testimony. Part one of this article will critically discuss the historical development of Uniform Court Rule 36(9), its recent amendments and the critique raised against the procedure. In part two the position in relation to the presentation of expert witness evidence in England and Wales, and Australia, as well as its possible contribution to the South African law will be discussed. It will be argued that the current procedure relating to the presentation of expert evidence in South Africa still has certain shortcomings and that the Rules Board will have to intervene to ensure that the procedure enhances access to justice in civil matters.
The role of expert evidence in civil matters : a critical analysis (Part 2)
Bekker, Petrus Thino (University of the Free State, 2024-06)
In the first part of this article, the author analysed the development and role of expert evidence in civil matters in the South African law (Bekker 2023:160-178). In the second part of this article, the author conducts an in-depth discussion of the position in England, Wales, andAustralia in relation to the application of expert witness testimony in civil matters. It is argued that, although there has been considerable progress in terms of the presentation of expert evidence in civil litigation in the South African law, a number of problematic aspects still need to be addressed. It is recommended that the Rules Board should intervene and that the rules relating to the presentation of expert evidence in civil matters should be amended in its entirety. In this regard, valuable insight can be gained from the English and Australian experiences.
The presentation of witness testimony in civil matters-time for a new approach? (Part 1)
Bekker, Petrus Thino (University of Fort Hare, Nelson R Mandela School of Law, 2024-12)
The problems in relation to access to justice in civil matters are not unique to South Africa but are of global concern. After the adoption of the final Constitution in 1996, several initiatives have been implemented in South African law in an attempt to enhance access to justice in civil matters as guaranteed by section 34 of the Constitution. Some of these initiatives are related to the presentation of evidence at the trial of a civil action. More than twenty years ago, there were several unsuccessful pleas from academic writers advocating that a similar position to England and Wales should be considered in South African law in relation to the compulsory exchange of witness statements before trial. It therefore seems like an opportune time to revisit the development relating to the exchange of witness statements in South Africa over the past few decades. Moreover, it is important to not only embark on an analysis of the exchange of witness statements, but also to look at the presentation of all evidence during action trials, including affidavit evidence. Part 1 of this article provides a comparative study between the presentation of witness evidence at trial in South Africa, England and Wales. The discussion firstly focuses on the presentation of witness testimony in South Africa and the exceptions to the general rule that it should be presented orally in court. Secondly, the position in England and Wales will be critically evaluated, as well as the newest developments relating to the presentation of witness evidence during trial. In part 2 of this article, some of the developments concerning the presentation of witness evidence in trial actions in Australia are critically examined. Lastly, some possible alternatives to the current presentation of witness testimony in South Africa are considered.
Plea in terms of Section 106(1)(h) of the Criminal Procedure Act 51 of 1977 : S v Moussa [2021] 3 All Sa (GJ)
De Villiers, Wium P. (LexisNexis, 2023)
Die beskuldigde het ingevolge artikel 106(1)(h) van die Strafproseswet 51 van 1977 gepleit dat die aanklaer nie titel het om te vervolg nie. In die saak het 'n vorige aanklaer sonder magtiging 'n pleitooreenkoms met die beskuldigde aangegaan. Die beskuldigde het ingevolge die ooreenkoms aan die klaer betalings gemaak onder die indruk dat die klagtes by betaling teruggetrek sou word. Die Adjunk-Direkteur van Openbare Vervolging ("ADOV") het nie die ooreenkoms teruggetrek of die afdwinging van die ooreenkoms voorkom nie, en het voortgegaan met die vervolging. Die beskuldigde het aangevoer dat die Staat as 'n invorderingsagent opgetree het en dat dit 'n misbruik van proses was. Die hof het bevind dat die term "aanklaer" in artikel 106(1)(h) nie vir 'n beswaar teen die ADOV voorsiening maak nie, maar wel teen die vorige aanklaer. Die hof bevind verder dat dit nie 'n misbruik van proses was nie. Dit word aangevoer dat die term "aanklaer" in artikel 106(1)(h) net die aanklaer voor die hof, en nie 'n vorige aanklaer, die ADOV, die vervolgingsgesag of die Staat insluit nie. Dit word verder aangevoer dat, al sou die term "aanklaer" 'n vorige aanklaer insluit, die gedrag van die vorige aanklaer nie 'n misbruik van proses was nie. Dit word laastens voorgehou dat die beskuldigde op die ooreenkoms moes gesteun het en aansoek moes gedoen het vir 'n permanente verbod teen verdere vervolging, in plaas daarvan om op artikel 106(1)(h) te steun.
Rescission of judgments by consent – recent developments and lessons from England and Wales
Bekker, Thino (University of Fort Hare, Nelson R Mandela School of Law, 2023-07)
This article contains a critical discussion of the recent developments relating to the rescission of judgments by consent in both the High and magistrates’ courts, the amended periods relating to the retention and removal of adverse information from credit bureaus, and the impact thereof on the South African credit consumer market. The position in relation to the setting aside of judgments in England and Wales is discussed and it is argued that some of these provisions should be incorporated in the South African law. The author concludes that the current, as well as proposed application of the rescission of judgments by consent still has certain shortcomings and that the legislature will have to intervene to ensure a uniform and fair application of the procedure in relation to both credit providers and credit consumers.
Incorporating the incorporeal : the potential classification of Bitcoin as a ‘thing’ under South African common law
Geyer, Brigitte (University of Pretoria, 2023)
This article aims to determine whether Bitcoin could be classified as a ‘thing’ in the South African common law of things. The key motivation behind this article is to determine whether the Pandectist focus on the corporeality requirement in the classification of things is outdated in the modern, technologically driven era. Bitcoin, which is classified as a decentralised convertible virtual currency has been received positively in South Africa over the course of the last few years, as Bitcoin adoption has grown exponentially. South Africa has also seen the implementation of important regulatory reforms surrounding virtual currencies; primarily the recognition of virtual currency as a financial product and its traders as financial service providers. Given the positive reception of virtual currencies, particularly Bitcoin, in South Africa, this article explores the recognition of Bitcoin as a ‘thing’ in South Africa law, as well as the significance of this classification. From this evaluation, it will become clear that the incorporeal nature of Bitcoin poses a challenge to its common law recognition, albeit not an insurmountable one. In this regard, two arguments — the doctrinal argument and the exception argument — are proposed whereby Bitcoin could be recognised as a thing despite its incorporeality.
Legality of professional mixed martial arts in South Africa
Ramsden, Gerald Andrew; Cloete, Rian (Nelson Mandela University, 2024-12-31)
Senator John McCain may have been on point when he described mixed martial arts (MMA) as “human cock-fighting” in its formative years in the early 1990s in the United States of America (US). Those early MMA contests were no-holds-barred brutal affairs, fought between bloodied combatants of all shapes, sizes and combat styles, in a metal cage. Like bare-knuckle prize-fighting during the 18th and 19th centuries, this new form of combat sport closely resembled a glorified street fight. The sheer brutality of these spectacles ultimately led to the banning of MMA across the US. Realising that MMA’s future depended on governmental sanction and regulation, its organisers actively sought out such sanction and regulation. Although MMA is now legal in all US states, its regulation in both the United Kingdom (UK) and South Africa has lagged behind, raising uncertainty about its legality in these jurisdictions. This uncertainty has been exacerbated by the absence of legislative intervention and judicial scrutiny regarding MMA in both the UK and South Africa. There is, furthermore, a dearth of academic literature addressing this legal lacuna. This study endeavours to bridge that gap by examining the legality of MMA in South Africa. In so doing, guidance is sought from the manner in which the English courts have approached boxing and other activities that entail consensual bodily harm, such as sadomasochism.
Under the influence : the Kusile tender and state capture permeating the national prosecuting authority
Curlewis, Llewelyn Gray; Carter, Katelyn-Mae (Emerald, 2025-01)
PURPOSE : The purpose of this paper is to give light to the present order of state capture and corruption within South Africa at present. South Africans often consider the National Prosecuting Authority to be an independent body which is free of the corruption of the rest of the Government; however, the situation that surrounds the Kusile Tender will suggest otherwise. DESIGN/METHODOLOGY/APPROACH : This paper’s approach is purely qualitative using journal articles, textbooks, reports, periodicals, speeches and legislation as its basis. It is through a consolidation of this literature that this paper was formed. FINDINGS : This paper determines that even the National Prosecuting Authority of South Africa is not free from the scourge that is corruption through the depiction of the Kusile Tender. Within this tender, the National Prosecuting Authority entered into a non-prosecution agreement with a defendant, Asea Brown Boveri, which cannot be accounted for in the Criminal Procedure Act 51 of 1977. ORIGINALITY/VALUE : The concept of state capture and corruption are not new to any jurisdiction, let alone South Africa. This paper, however, intends to give insight into how even the departments which the public believe to be (and are constitutionally mandated to be) independent can fall prey to corrupt dealings.
Can the death penalty still be considered a “cruel, inhumane and degrading punishment” in the face of South African prison conditions?
Curlewis, Llewelyn Gray; Carter, Katelyn-Mae (Nelson Mandela Metropolitan University, Faculty of Law, 2024-06-01)
The use of the death penalty as a form of punishment can be traced back to the earliest human civilisations. South Africa was no stranger to this punishment, and it was only abolished here in 1995. South Africa accepted this form of punishment through its colonisation by the English. The union of South Africa made use of hangings throughout the 1900s; an average of 4 000 executions were implemented over an 80-year period (Cronje (ed) “Capital punishment in South Africa : was abolition the right decision? Is There a case for South Africa to reintroduce the death penalty?” South African Institute for Race Relations 2016. In 1989, President FW de Klerk placed a moratorium on the physical implementation of executions during the negotiations of the convention for a Democratic South Africa (Cronje South African Institute for Race Relations. The constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) was adopted during these negotiations; while it contained a comprehensive bill of rights, it did not address the use of capital punishment. The fate of the death penalty was left to the courts to address in 1995 in the landmark case of S v Makwanyane and Mchunu ((1995) 6 BCLR 665). Chaskalson J stated that section 277(1)(a) of the Criminal Procedure Act (51 of 1977) was unconstitutional with reference to the following rights: section 9 (life); section 10 (dignity) and section 8(1) (equality before the law). He stated that the reasoning for this decision was that the imposition of the death penalty amounted to a cruel, inhumane or degrading punishment inconsistent with the right to life and human dignity. Moreover, this punishment cannot be reversed in the case of error or enforced in a manner that is not arbitrary. However, in the 28 years since this decision was made, South Africa has experienced an escalation in violent and sexual crimes, including murder, robbery with aggravating circumstances, rape and kidnapping. With this in mind, South Africans are left to question whether our courts should be implementing more serious sentences for these crimes and whether the decision made by Chaskalson J was correct.
International commercial mediation : international recognition and enforcement of mediation agreements
Curlewis, Llewelyn Gray; Raubenheimer, Ettian (Nelson Mandela Metropolitan University, Faculty of Law, 2024-06-01)
Global economic output has increased dramatically due to an increase in cross border trade, the rise of multinational corporations and globalisation. The globalisation of trade resulted in an increasing interaction between different cultures and legal traditions with different value systems and philosophical foundations, leading to increased dispute potential which could eventually develop into conflict. The default setting for conflict resolution is widely recognised as judicially sanctioned dispute resolution, otherwise referred to as litigation. Commercial litigation processes are, however, getting more costly and burdensome. Commercial disputes are furthermore becoming more complex because of the globalised trade landscape and increasing cross-border mobility. This poses unique challenges for litigants and courts. Typical problems encountered include governing law issues, enforcement issues, differing national administrative requirements and legal processes. Dispute resolution by means of litigation is subject to intrinsic characteristics exacerbating the complexity of cross-border disputes. In the EU member states for instance, it takes between one hundred and three hundred days to obtain a first- instance judgment in civil proceedings.
An evaluation of alternative dispute resolution mechanisms in the African region
Baboolal-Frank, Rashri; Naude, Louis (Nelson Mandela Metropolitan University, Faculty of Law, 2024-06-01)
Alternative dispute resolution (ADR) in Africa is growing and flourishing but the region is not a global leader in conflict resolution. The African region still has many challenges to overcome. The region has the potential to expand, grow and thrive with foreign direct investment to boost its economies and ensure stability for its infrastructure. The African region is rich in many natural resources, but, unfortunately, interstate conflict causes instability to social, political and economic rights. This article explores the weaknesses and challenges within the African region with a view to activating the potential of the region to become a global leader in alternative dispute resolution. The enforcement and implementation mechanisms of alternative dispute resolution require an evaluation of current systems to ensure that there is an animate thrust of dispute resolution. The African systems have their strengths, but an evaluation of any system always exposes weaknesses. Corruption within the African region is a common theme, since government does not play an active role in deterring corruption, and this causes the public to mistrust all initiatives that stem from government influence. The article discusses the situation in four African countries, showing that corruption, lack of education and a lack of skilled ADR practitioners cause a dysfunctional system that cannot embrace ADR. For an ADR system to function smoothly, numerous ADR practitioners are needed to resolve conflict competently. Furthermore, a selective system of favouring laws that support only the government as opposed to investors causes an imbalance, and discourages investors from investing in Africa. A way needs to be paved, not to negate international practices relating to investor disputes, but rather to work holistically with national laws, to harmonise laws and overcome any conflict of law within the region.
The doctrine of proportionality : a proposed solution to human rights infringements in sports adjudication
Van der Merwe, Bianca; Cloete, Rian (Pretoria University Law Press, 2024)
The primary aim of this study is to emphasise the importance of applying consistent standards in the adjudication of human rights matters, particularly in the context of sports disputes. This study will investigate the judgments handed down by various courts in matters pertaining to the eligibility of female athletes with Difference of Sex Development to compete in elite competition and the impact thereof on international human rights. Conclusions are drawn regarding the need for a standard approach when considering the legality of limiting human rights in arguing that all courts should apply the same standards required by Human Rights courts when adjudicating human rights issues, even within the realm of sports disputes. The Doctrine of Proportionality is proposed as an appropriate standard to ensure that limitations of fundamental rights are just and reasonable.
Exploring the need for numeracy skills in legal practice
Wannenburg, Elizma; Curlewis, Llewelyn Gray (Taylor and Francis, 2023)
Legal practices are perceived as an epitome of the battle between good and evil. However, a different battle over the preparedness of the next-generation lawyers is now trending amongst law practitioners. Analytical ability, attention to detail and logical reasoning were perceived as sufficient skillsets for legal practitioners. However, are these skillsets adequate when conducting a substantive legal analysis that might require some form of numeracy? To answer this question, two focus-group discussions were held with various legal practitioners, in order to explore the need for numeracy skills in legal practice. The findings revealed that numeracy skills are deemed highly important, since the majority of legal practices require numeracy at some or other stage. In view of the findings, it is recommended that curriculum practitioners start with the review process of these qualifications, in order to prepare industry-ready graduates that are equipped to deal with numeracy in a confident and knowledgeable manner.
"Pay back the money” – a paper on criminal and civil asset forfeiture within South Africa and suggestions for reform
Curlewis, Llewelyn Gray (Emerald, 2024-06)
PURPOSE : The purpose of this paper is to bring to light the present civil and criminal asset forfeiture procedures within the South African context and to make suggestions for reform thereof. While there exists and is a need for constant change and reform of the law to ensure that it remains transparent, up-to-date and applicable to all means through which economic crime can be committed, South Africa lacks the necessary resources and attitudes to accomplish this essential goal. DESIGN/METHODOLOGY/APPROACH : The approach used in this paper is purely qualitative using journal articles, textbooks, reports, periodicals, speeches and legislation as its basis. It is through a consolidation of this literature that this paper was formed. FINDINGS : While South Africa’s present system of asset forfeiture is producing some impressive results, the process still has vast room for improvement. There are key areas which this paper outlines for reform. However, the probability of improvement is relatively low owing to the levels of corruption, illicit activities and attitudes of mistrust within the South African society at large. ORIGINALITY/VALUE : The concept of asset forfeiture is not new to any international jurisdiction, let alone South Africa itself. However, this paper aims to give insight into the specific South African experience of this procedure and how it can possibly be improved within the specific context.
The apportionment of legal costs in South Africa : a comparative analysis
Bekker, Thino (Juta Law Journals, 2022)
Een van die grootste hindernisse wat toegang tot die reg in siviele sake, soos gewaarborg in artikel 34 van die Suid-Afrikaanse grondwet, belemmer, is die toekenning van astronomiese regskoste aan die einde van 'n regsgeding. Daar is twee fundamentele reëls wat van toepassing is wanneer 'n hof 'n kostebevel toestaan aan die einde van regsverrigtinge in Suid-Afrika. Die eerste basiese reël bepaal dat die toekenning van regskoste in die diskresie van die hof is. Die tweede algemene reël bepaal dat koste die uitkoms volg, met ander woorde, koste word toegeken aan die suksesvolle party (die sogenaamde Engelse model). Daar kan slegs van hierdie algemene reël afgewyk word waar daar goeie gronde of spesiale omstandighede teenwoordig is wat die toekenning van 'n alternatiewe kostebevel regverdig. Hierdie wye diskresie gee egter aanleiding tot sekere problematiese aspekte in gevalle waar beide partye 'n sekere mate van sukses behaal. In hierdie artikel word die reël dat koste in die algemeen die uitkoms volg in die afwesigheid van spesiale omstandighede, krities bespreek. Daar word aangevoer dat, alhoewel die toekenning van koste in die algehele diskresie van die voorsittende beampte is, die algemene reël dat koste die uitkoms volg, in die meeste gevalle slaafs nagevolg word, selfs waar daar 'n werklike dispuut tussen die partye bestaan. Daar word aangetoon dat daar verskillende benaderings deur ons howe gevolg word by die toekenning van kostebevele wat regsonsekerheid tot gevolg het en wat dit moeilik maak vir 'n party om te besluit of dit die moeite werd is om regsverrigtinge in te stel of te verdedig. Daar word derhalwe aanbeveel dat die algemene reël behou moet word, maar dat die howe se diskresie vernou moet word en dat sekere voorafbepaalde faktore in aanmerking geneem moet word by die toekenning van 'n kostebevel, wat billik is teenoor al die partye. Die algemene reël behoort ook gewysig te word om voorsiening te maak vir die verdeling van regskoste waar beide partye 'n mate van sukses behaal het tydens die verhoor. Die regsposisie in België, Duitsland, Nederland en Engeland en Wallis word krities bespreek en daar word aanbeveel dat sekere bepalings van hierdie buitelandse regstelsels met vrug in Suid-Afrika geïmplementeer kan word.

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