• 2016


    We are pleased to present the 2016 edition of Inkundla, a law review written and edited by students at the Oliver Schreiner School of Law at the University of the Witwatersrand. The aim of the journal is to encourage and facilitate scholarly legal writing amongst Wits law students.

    The word ‘Inkundla’ refers to a traditional court where debates and eye-witness accounts of emerging social phenomena were hosted. Pursuant to the aspirations of the founding editors, we hope that this edition of the journal continues to fulfill the same function.

    On a more personal level, we hope the journal will take you, the reader, on a journey through a variety of topics and opinions as interpreted and expressed by young legal minds.

    We would like to acknowledge the invaluable assistance received from various people. In particular, we would like to thank Ms Franziska Sucker of the School of Law and Mr Ernest Lee Mate, a founding editor, for their continued involvement and encouragement in our effort to produce this edition. We would also like to extend our gratitude to the School of Law for their support. Moreover, we would like to thank Norton Rose Fulbright, our first official sponsor outside of the Law School, for their financial assistance. We also thank Mariya Badeva-Bright for her assistance with the Inkundla website, and Taremeredzwa Takudzwa Chirewa, whose artwork appeared on the cover of the first edition of Inkundla and continues to feature on the back cover to commemorate that edition.

    Furthermore, we are indebted to Melanie Salgueiro, for allowing us to use her beautiful water colour painting as the cover of this edition. It is our belief that the painting encapsulates the idea of a journey, in a specifically South African context, in the same way we hope the published articles will do.

    Thank you to all those who sent us their work for publication. A special thanks to the authors of the selected essays.

    In this edition, the authors travel with us through a range of topics. Lisa Arthur explores the concept of sustainable development and its application in South Africa. Luqmaan Hassan investigates the legal principles of affirmative action together with their limitations in the workplace. Charl Herman looks at the concept of a gender galaxy in South Africa while Kelvin Kajuna provides us with an insightful analogy between law and chess. Mxolisi Ngulube examines a dilemma in respect of the impartiality and independence of the office of the Public Protector and Ané Pienaar provides commentary on the case of Hattingh and Others v Juta 2013 (3) SA 275 (CC). Finally, Romy Wulfsohn takes a fresh look at the trolley problem in ethics and how this relates to law.

    The editorial team endeavoured to select essays of a high standard. We hope that you will find these essays as insightful, engaging and thought-provoking as we do. 


    Note on Contributions

    We encourage all students to submit articles for consideration for the next edition of Inkundla. To do so, email us at witslawjournal@gmail.com, or visit www.inkundlajournal.org to engage with fellow writers and researchers.

    The years of study given for the authors in this edition reflect that in which they were when they wrote their respective essays.

  • 2015

    The editorial team of Inkundla Student Journal are pleased to present the 4th edition of the Journal. The aim of the Inkundla Student journal has always been to encourage and to facilitate scholarly legal writing among law students and this edition continues to pursue that goal. We have a firm belief that the best legal minds are formed and fashioned during their time at university, and we strive each year to bring some of the best student articles together to both analyse current legal issues and to offer our readers a foretaste of what the future of legal scholarship will be.

    In the 2015 journal, the writers have offered critical analysis to contemporary issues in various spheres of law. Tshepo Mothulwe writes a detailed piece answering the question of who the primary benefactors of companies are – in a bid to shed some light on the overall purpose of a company in South African law. Sulaiman Hoosen explores the provisions of the recently passed Consumer Protection Act that focus on the protection granted to minors, and comments on their adequacy and relevance. Adrian Carr considers the legality or otherwise of “egg-brokers” and evaluates whether the legislation pertaining to such donations sufficiently protects women from exploitation. In considering the effect of the “subtraction from dominium” rule in the modern day, Katherin Pillay argues for a context-based approach for when and in what instances an obligation to pay money based on land can be considered a real right. Moving beyond South Africa's borders, Lynne Barry considers the international law norms relating to the prosecution of Heads of State’s of countries that are not signatories to the Rome Statute establishing the International Criminal Court. In a practical application of this analysis, she considers the possibility of international criminal law adjudication for possible charges against Robert Mugabe, current president of Zimbabwe. And finally, Karabo Matsoso analyses whether the Constitutional Court of South Africa has sufficiently developed the doctrine of meaningful engagement in the arena of the right to adequate housing. The editorial team found these articles to be insightful, engaging and thought provoking and we trust that you will find them similarly stimulating.

    We would also like to extend our gratitude to the students who submitted their articles for consideration, and the lecturers at the Wits law school for their assistance in encouraging students to submit their work to the editorial team for consideration, and their assistance in identifying possible articles for publication.

    We trust you will enjoy reading the 4th edition of the Inkundla student journal as much as we enjoyed collating it.

    The online version of this journal is available at www.inkundlajournal.org 

    The Editorial Team, 2015


    Note on Contributions

    We encourage all students to submit articles for consideration for the next edition of Inkundla. To do so, email us at witslawjournal@gmail.com, or visit www.inkundlajournal.org to engage with fellow writers and researchers.


    The editors would like to thank Franziska Sucker of the School of Law and Ernest Lee Mate, the founding editor, for their continued support and encouragement in our effort to produce this edition. . We would also like to thank the Wits law school for their financial backing and support of this project and to Mariya Badeva-Bright for her help with the Inkundla website. Furthermore we would like to thank Chiuta Ndube for the contribution towards the new front cover, and encourage other students to contribute towards the development of this initiative in the future.

  • 2014

    Another year has passed, and after much work and much learning, another group of student-editors is pleased to release the 3rd edition of Inkundla. Inkundla is a student-driven initiative, aimed at showcasing the best of legal writing and research at the Wits Law School. Though still at the very beginning of their legal careers, we believe that the students have valid thoughts and ideas about the world they live in, and the societies they are preparing to serve. This journal presents a forum for them to share their ideas and make their contribution to the development of legal knowledge.

    The focus of this edition is corporate law, human rights and social justice. Human rights will always be a topical issue, touching as it does on the very essence of the person who is the subject of all social and economic concerns. If the current economic and social problems were viewed through a human rights lens, we perhaps might have averted the Marikana violence, or eradicated the seemingly entrenched differential treatment of women prevalent in Islamic countries such as Saudi Arabia. Still on the question of human rights, a proposal is put forward for the creation of the right to work in South Africa as a means of securing alternative and more dignified work for sex workers thus alleviating their plight. The different possibilities available to give meaning to and implement human rights further increase their applicability as means of addressing the plight of the vulnerable

    Two authors tackle questions of corporate law. A critical analysis of the amendments of the 1973 Companies Act on the question of repurchases reveals curious gaps brought about by the introduction of new provisions and removal of old ones. The principle of reflective loss is discussed questioning the factors that determine the value of the shareholders’ loss.

    We would like to thank Franzisker Sucker of the School of Law and Ernest Lee Mate, the founding editor, for their continued support and encouragement in our effort to produce this edition. Thanks to the Wits Law School for supporting us again financially and Ms. Mariya Badeva-Bright for her continued help with our website. We are also very grateful to the lecturers who encouraged their students to submit their articles, and to the students of the Wits Law School who sent us their work for publication.

    As we present this third edition of Inkundla, we are reminded of our initial dream that this student journal would facilitate ‘peer’ education which will impact on the depth and breadth of the legal education of all involved. We hope that this publication has taken us closer to our goal.

    The online version of the journal is available at www.inkundla.org.


    The Editorial Team, 2014

  • 2013

    Note from the Editors

    With the South African legal landscape currently shifting – instability in the mining sector, for one, causing a rethink of the government’s transformation policy and forcing serious introspection on the very nature of the rule of law in the country – it is, for some, hard to justify an even more general discussion of what is happening in Africa on a regional level. Inkundla hopes to use this year’s journal as a platform for a different train of thought: South Africans must look ‘outward’ to its regional framework to better locate itself for any discussion on where South Africa is headed. This is because, while South Africans might be gradually fine-tuning domestic issues, the world is certainly looking to the continent, in its entirety, as the final frontier. The late South African poet Ingoapele Madingoane took this outward-looking perspective: in the last lines of his iconic poem, Africa, My beginning, Africa My Ending, he wrote: “…Africa my beginning/ And Africa my ending/ Lets do something.”

    It is our pleasure to present the second edition of Inkundla, which has an international law theme, examining pressing issues of international law in South Africa, on the African continent, and beyond. The first article critically considers the African Court of Justice and Human Rights, and in particular the proposed merger of the Africa Union’s two dispute resolution bodies. The second article discusses the African Union’s complex relationship with the United Nations and provides realpolitik insights into what we can expect from this relationship in the future. The third article looks at the debate over the use of force and the responsibility to protect – a topic of vital importance for a number of African states – focusing on the situation in Syria, Africa’s neighbour to the north. This is followed by an analysis of the challenges in addressing rape in the Democratic Republic of Congo. The final piece takes the domestic sphere as its perspectival locus, and looks at new developments in the prosecution of international crimes in South Africa.

    The editorial team feels that a consideration of these issues is vital to a richer appreciation of South Africa’s role on the continent in the future. An integrated understanding of national and regional issues provides a solid foundation for further transforming South Africa’s nascent state; a task incompatible with an isolationist view. While there is much to be said for concentrating on South African development, no citizen of this country should forget that he or she lives on a continent with millions of other aspiring and ambitious people, also seeking new solutions to our continent’s problems; and it is this collective aspiration that provides strength. While Africa faces a myriad of problems it should be remembered that there is no dearth in the array of African legal thought currently surfacing, and it is from these rich intellectual productions that ideas on how to move this continent forward will emerge.

    This edition marks a shift from print publication to online publication - using the Inkundla website at www.inkundlajournal.org. This shift was made, inter alia, in order to reduce Inkundla’s environmental footprint. Society must take action to mitigate the risk of catastrophic climate change. Online publication signifies Inkundla’s effort to fulfill this social responsibility. Furthermore, in this digital era, a large amount of research is done online. It is our hope that, with online publication, Inkundla will keep abreast with current research methods; that Inkundla and its contributing author’s will gain global exposure; and that the journal will be more accessible for legal practitioners, academicians, students and others.

    We would like to thank Ms. Franziska Sucker for her guidance in the compilation of this edition; Ms. Mariya Badeva-Bright for all her help with our website; the Wits Law School for its continuous support; and the students of the Wits Law School who sent us their work for publication and continue to produce quality pieces of writing which makes our selection process a lot more difficult but it is a welcome problem.


    Edwin Berman

    Robert Freeman

    Fatima Henwood

    Ernest Mate

  • 2012

    It is our pleasure to present the online version of ‘Inkundla’, a law journal written and edited by students at the Oliver Schreiner School of Law at the University of the Witwatersrand. This website serves to augment the printed version by exposing it to a greater audience, creating a platform for debate and discussion, and posting a few extra articles which may be of interest.

    The name ‘Inkundla’ refers to a traditional court, where debates and eye-witness accounts of emerging social phenomena were hosted. ‘Inkundla’ - the journal - hopes to fulfil the same function, albeit in the context of a modern African democracy. More specifically, first, the journal aims to motivate and improve the quality of student writing and research in the field of law by providing a vehicle for academic publishing.  Second, the journal aims to provide well researched material on distinct legal issues or particularly important cases for legal practitioners, academicians, students and others to make use of. Third, it hoped that the journal will ultimately, whether directly or indirectly, influence legal development in South Africa.

    We have had great support for this initiative, both from staff and fellow students. Professor Jonathan KlaarenProfessor Bonita Meyersfeld, Ms. Franziska Sucker and Ms Mariya Badeva-Bright, in particular, have given endless enthusiasm, advice and time in helping us bring this project from conception to completion. We have also received very generous financial and institutional backing from the Law School, without which we would not have been able to take our first step. In short, the show of belief, vision and unconditional support from Wits has been inspiring and invaluable to our success. We are deeply grateful.

    We must also thank our fellow students, from those who offered casual words of encouragement in lecture halls to those who sent us their work for publication. That so many have already showed an interest in the journal bodes well for its future. A special word of thanks must go to Taremeredzwa Takudzwa Chirewa, a student at the Wits School of Arts, who gave us the artwork for our cover.

    The Editors:

    Craig Dewar

    Alexandra Fitzgerald

    Ernest Lee Mate

    Michael Williams

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