Pretoria Student Law Review (2019) 13
Total Page:16
File Type:pdf, Size:1020Kb
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: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] www.pulp.up.ac.za ISSN: 1998-0280 © 2019 TABLE OF CONTENTS Editors’ note: Legacy v by Primrose Egnetor Ruvarashe Kurasha Tribute v ii Note on contributions viii Restoring electricity use with the spoliation remedy: A critical comment on Eskom Holdings Soc Ltd v Masinda 1 by Gustav Muller Prescription: The present interpretation of extinctive prescription and the acquisition of real rights 17 by Celinhlanhla Magubane 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 40 by DJ van Wyk 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 74 by Kayla Thomas 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? 130 by Nicholas Herd 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 redress or an 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 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 pre- destined 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 v 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 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 the Pretoria 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 the PSLR and enhanced its readership. Again, thank you Prof. For being an exceptional Guardian of the PSLR, 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 the Pretoria 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: [email protected] 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 by Gustav Muller* 1Introduction In Eskom Holdings SOC Ltd v Masinda1 (‘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 these dangerous connections.2 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 installed by an authorised contractor.3 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.