Pretoria Student Law Review

Our sincere congratulations to the PSLR editors for the timely completion of the 2017 edition. We invite all students to submit material for the eleventh edition of the Pretoria Student Law Review.

2 An overview of media freedom in Kenya

International law

Most importantly, the Fifth Schedule of the Constitution of Kenya stipulates that laws relating to media freedom must be passed within three years ie. Parliament enacted the KICA to address the regulatory challenges posed by the need to enact Article 34 of the Constitution of Kenya.

3 Kenyan case law on media freedom

The court declared section 12 of the SLAA and section 66A of the Penal Code unconstitutional for violating freedom of expression. In Robert Alai v. The Honorable Attorney General and Another, the constitutionality of Section 132 of the Penal Code, CAP 63 Laws of Kenya was challenged.114.

4 Extra-legal factors hampering media freedom in Kenya

Media ownership

Macharia, a businessman and politician.145 In addition, all the five major TV operators mentioned above also operate radio stations with significant geographical reach, meaning that unlike all the other media houses, each of the five has nationwide coverage. 146. Kenya has for decades been dominated by the Daily Nation and its weekend editions, all owned by NMG of the Aga Khan and the Standard newspapers.

Advertising

Currently, the government publication is now published as paid supplements in the four newspapers, The Daily Nation, The Standard, The Star Newspaper and People Daily, the latter owned by the Kenyatta family.157. When the government withdraws government advertising from commercial media, this can be interpreted as a way to undermine freedom of expression.

Threats and attacks against journalists

5 Media freedom and the Kenyan General Election (2017)

Network (KTN), one of the leading traditional media houses in Kenya, has been accused of under-representing opposition politics in Kenya and openly supporting the Jubilee government ahead of the 2017 general elections in August.175 The broadcaster has come under fire of social media. media users who suggested that a series of distorted news reports it presented discriminated against the opposition party, National Super Alliance (NASA) and that the reports were designed to deliberately condition the minds of voters and ultimately their opinions on key campaign issues and the respective candidates 176 This further led some Kenyans on Twitter (commonly known as #KOT) to have a hashtag labeled '#PartisanPressKE' which trended on Twitter on 19 June.177 On 13 August 2017, NASA told its supporters to to boycott the Nation Media Group newspapers and television, alleging bias.178. There have even been complaints that local journalists do not report what innocent Kenyans go through with the police, and instead broadcast children's programs on TV.183.

6 Conclusion

While all this was unfolding, many Kenyans, unhappy with the mainstream media's limited coverage of the situation, were glued to social media channels for updates.184 The mainstream media eventually began covering the stories, but only after international media had defeated them. When local mainstream media eventually began reporting on police brutality against those protesting the Kenyan elections, reports emerged of complaints of police harassment of journalists.186 For example, on August 12, 2017, KTN journalist Duncan Khaemba was arrested while reported on violent post-election protests in the Kibera slum in Nairobi.187 In addition, Matina Stevis, Africa correspondent for The Wall Street Journal, told the Committee to Protect Journalists (CPJ) that a police officer had her on the head with a knife beaten. wooden stick on August 12, 2017.188 In the western city of Kisumu, an opposition stronghold, police officers blocked journalists' access to protesters.189 Nation Media photographer Dennis Onsongo stated that someone stole his lens as he moved through a crowd to the aftermath of the death of a child. deaths in post-election protests in Mathare area of ​​Nairobi.190. Furthermore, for a restriction to be valid, one of the following conditions must be met: (1) the legislation specifically expresses the intention to restrict that right or fundamental freedom, and the nature and extent of the restriction; (2) the provision is clear and specific as to the right or freedom to be restricted and (3) the nature and extent of the restriction; and shall not restrict the right or fundamental freedom in such a way as to deviate from its core or essential content.193.

THROUGH TRANSFORMATIVE CONSTITUTIONALISM AND THE PHILOSOPHY OF UBUNTU

1 Introduction

From authoritarianism to a culture of justification

The promulgation of the Constitution was almost immediately followed by commentary and criticism, including the conception of transformative constitutionalism. Albertyn and Goldblatt have noted that while there is broad consensus on the challenge of transformation underlying the Constitution23, different readings of the Constitution are.

Obfuscation of substantive reasoning in a formal legal culture

Klare further suggests that the character of our culture and legal education must be transformed in order to bring them into line with the values ​​protected in the Constitution.33 Although this disconnect seems clear to Klare, Froneman J offers a different view. which I believe is closer to the truth.34 Froneman J differs with the idea that legal actors actively observe the manifestation of formal reasoning in their work and proposes an awareness of the means through which conservatism in legal culture shapes professional sensibilities.35 After all practitioners in the bar have undertaken to understand the reasons for which formal reasoning is used, then it would be simply dishonest to continue to harbor a position of ignorance. On one level, Klare is correct in asserting that legal practitioners who find themselves in a particular legal culture are trained in a particular way to identify what constitutes a persuasive argument or method of judgment and what does not.36 On one level otherwise, legal education cannot take full credit for orienting perceptions toward solving legal problems.

2 Judicial reasoning and the exercise of public power

Constitutional dialogue between state institutions

69 In accordance with Article 2(2) of the Social Assistance Act 13 of 2004, SASSA is the body responsible for the provision of social assistance. However, in view of the devastating consequences that disruptions in the provision of grants would have, the court decided to suspend the declaration of nullity.

3 The influence of Ubuntu on constitutionalism

The pursuit for restorative justice

The inclusion of a property clause in the Constitution (which calls for the expropriation of land subject to the provision of just and equitable compensation)116 protected the ownership rights of existing property owners, thereby jeopardizing the state's ability to reclaim title stated to land Sibanda conceives of constitutionalism and its intention to limit the powers of the state to the limits of a written text.119 In his engagement with this discourse, Sibanda admits that there.

The ‘land question’

In reflection, the passage of the Promotion of National Unity and Reconciliation Act127 was a clear attempt to unravel the untold wrongs of the past with a focus on restorative justice. Individuals lay exclusive claims to items of personal use such as clothes, papers, and other items that are not of direct interest to other members of the group.128 However, 'common property [is].

4 Conclusion

In this regard, it is useful to leverage interaction with other branches to facilitate dialogue between the judiciary, the legislature and the executive, which must jointly enforce the Constitution. 147 Y Mokgoro ‘uBuntu and the law in South Africa’ in Cornell D and Mavangua N (eds) Ubuntu and the law: African ideals and post-apartheid jurisprudence.

ENVIRONMENTAL IMPACT ASSESSMENT

Therefore, any person who may be affected by the construction of an environmentally harmful project should be informed and given the opportunity to present his or her own case.7. In South Africa there appears to be a problem regarding legal compliance with environmental permits issued by the Department of Environmental Affairs and Tourism (DEAT).

2 Contextualisation

• Introduction
• History of environmental permitting and authorisations in South Africa
• Specific matters relating to the EIA process
• Conclusion

During the environmental law revolution of the 1970s, EIA was debated as a necessary and appropriate tool to achieve environmental conservation. 17 M Sowman, RF Fuggle & G Preston 'An overview of the evolution of environmental assessment procedures in South Africa Environmental Impact Assessment Review 46.

3 Public participation

• Introduction
• Administrative action
• Public participation — the what, why and when
• Public participation in the EIA process
• Conclusion

Public participation in the EIA framework and its importance have been formally recognized by both legislation and international law. In the Netherlands, the developer must provide a non-technical overview to the public and other decision makers during the public participation process.

4 Recommendations

• Introduction
• Effectiveness of current system
• Possibility of alternatives and environmental courts The possibility to move away from an EIA system does not constitute
• Social impact assessment
• Conclusion

The main factors influencing the effectiveness of the EIA system include the process of public participation and the identification of those who should be involved.90. Another limitation that the legislature has on an effective system of public participation is the amount and scope of information that must be made available to the participants in the process.

5 Final thoughts and conclusion

One of the main areas of law that will require further research and planning is public participation. Public participation in EIA helps redistribute power from exclusive government control to the general public.

MODEL LAW ON CROSS-BORDER INSOLVENCY AND EU INSOLVENCY REGULATION 2017, AGAINST THE

2 Comparative analysis

• Definitions
• Sources
• Cross-border insolvency law: Motivation and jurisprudence As a point of departure, it is necessary to explain the rationale behind
• Comparison between the UNCITRAL model law of insolvency and the EU Insolvency Regulation

Cross-border insolvency law aims to mitigate such conflicts through sources such as the UNCITRAL Model Law and the EU Insolvency Regulation. After explaining some of the sources of cross-border insolvency law worldwide, the next section compares the UNCITRAL Model Law with the EU Insolvency Regulation.

3 Conclusion

This request for recognition is another conceptual difference that exists between the UNCITRAL Model Law and EU insolvency recognition. However, one difference between the UNCITRAL Model Law and the EU Insolvency Regulation is their respective spheres of influence.

WHEREABOUTS RULE

• Definitions: Key concepts
• Procedural law
• Potential problem areas
• The legal implications of the doping fight in South Africa .1 Section 36-Limitation Clause

The doping officials who apply the Whereabouts rule do not give the athlete to be tested prior notice of the test. So Whereabouts information provides the expected information in the form of the specific time and place for the athlete's testing.

WORK OF THE OECD AND ITS IMPACT ON AFRICA

This enthusiastic debate and harsh criticism from the public influenced the intervention of the Organization for Economic Co-operation and Development (OECD) to launch its now famous BEPS project. This paper will discuss the different parts of the BEPS debate, the OECD BEPS project and the impact of the project in Africa and Nigeria.

2 Morality and legality: The twin perspectives to the base erosion and profit-shifting (BEPS)

The policy makers’ perspective

However, after the dissolution of the League of Nations, the work was continued by the Organization for European Economic Cooperation (OEEC), the predecessor of the OECD. However, in relation to the specific issues of base and profit erosion; The OECD was the most active.

The public/media perspective

However, it is worth noting that the involvement of the media and the public in this debate; if properly coordinated, it has the potential to bring about the desired change. The only coordinated activity on the international stage to date, which appears to respond to calls for change in international tax rules and which runs on the energy of media and public involvement in the debate, is the BEPS project of the OECD.

3 The OECD BEPS project

• Action 1: Addressing the tax challenges of the digital economy
• Action 2: Neutralising the effects of hybrid mismatch arrangements
• Action 3: Designing effective controlled foreign company rules
• Action 4: Limiting base erosion involving interest deduction and other financial payments
• Action 5: Countering harmful tax practices more effectively, taking into account transparency and
• Action 6: Preventing granting of treaty benefits in inappropriate circumstances
• Action 7: Preventing the artificial avoidance of permanent establishment status
• Actions 8-10: Aligning transfer pricing outcomes with value creation
• Action 12: Mandatory disclosure rules
• Action 13: Transfer pricing documentation and country-by- country reporting
• Action 14: Making dispute resolution mechanisms more effective
• Action 15: Developing a multilateral instrument to modify bilateral tax treaties

As a result of the strategy used by multinational companies to avoid paying taxes through the existing loopholes in the definition of;. Permanent establishment,' the BEPS action plan recommended an amendment to the definition to prevent profit from being shifted out of the jurisdiction where the profit was obtained through the loopholes in the definition.

4 Impact of the OECD BEPS project on Africa

Effect of BEPS on Africa

The situation with BEPS is influenced by a number of factors, including a lack of relevant international tax laws or an unclear understanding of how the laws work and limited administrative capacity, etc.83. In light of the dire situation with BEPS in Africa and developing countries in general, concerns have been raised about the extent of Africa's involvement in the OECD BEPS project and whether the continent is responding to ongoing changes in the international tax law.

The impact of the OECD BEPS project on Africa

The next part of this paper will discuss the impact of the OECD BEPS project in Africa. 92 PwC Nigeria “Impacts of the OECD BEPS project on companies operating in Nigeria” http://pwcnigeria.typepad.com/files/pwc-tax-alert_impacts-of-beps-on-nigeria.pdf (accessed 21 July 2017) .

5 Conclusion and recommendations

This may include requirements imposed on the local subsidiary (e.g. master file information), but also requirements imposed on head office tax authorities (e.g. country reports) or on non-resident affiliates through the mechanisms of the Agreement on Mutual Administrative Assistance in Tax Matters;95 increasing transfer pricing controls and greater attention to substance when assessing the appropriateness of transfer pricing;96 increasing the ability of the FIRS to identify and challenge cases of transfer pricing abuse .97. Finally, while the great public outcry that has swept Europe and North America regarding the fairness of international tax rules has yet to hit Africa, it is suggested that the various tax administrators in Africa, under the auspices of the ATAF, should attempt to address the issues address these issues in a proactive manner through the strategies proposed in this document.

CRITIQUE ON THE COMMODIFICATION OF THE LEGAL SYSTEM AND THE LAW AS AN INSTRUMENT

In addition, I examine the Farlam Commission, and how its procedures and conclusions obstructed the course of justice in the context of our democracy.

2 Marikana in context: Historical state-

This showed a complete disregard for the safety of the impoverished workforce.23 Because of the special interest groups that have so much influence over the government, along with the poor. However, examples of radical lawyers willing to fight for the poor are certainly not the South African norm.27 This inequality has resulted in strikes becoming common among the working class, who show a willingness to fight for their constitutional rights.28 Our constitution seeks to redress the imbalances of the past. by promoting transformation instead of revenge and justification of authority.29 However, it is clear that material redistribution was not sufficient,30 and that a culture of authority was used in the handling of the Marikana protests.

3 A brief analysis of Miners Shot Down

Even after the advent of democracy, and despite clear recent political and legal victories, economic realities have not changed in South Africa.31 From this it appears that the Marikana tragedy was a continuation of historical systemic oppression in the South African society. Historical context is particularly important in my opinion, because what is shocking about the conditions encapsulated in the Marikana massacre is how similar they are to conditions that have prevailed in South African society since 1652; unskilled black laborers are underpaid by white managers.

4 The role of South African legal culture

The causes and consequences of the killings can therefore be analyzed through the common thread of unequal and oppressive socio-economic conditions that have dominated South African labor patterns and society at large throughout the nation's history. The nation today is consistently described as a nation working to become a non-racial democracy.44 The Constitution of the Republic of South Africa, 199645 is the supreme law of the post-apartheid South African legal order.46 The founding provisions of this document are invoked in the rule of law as a governing principle of South African society.47 If the 'new' South Africa really has.

5 Aftermath: Assessing the Farlam Commission

Furthermore, an examination of our legal system reveals that the inextricable link between big business and government has led to a commodification of the law. Although Miners Shot Down was a flawed and biased piece, it still managed to bring the events to the attention of the general public.

JUSTICE AND TRANSFORMATIVE

CONSTITUTIONALISM: THE IMPLICATIONS OF MELANI V THE CITY OF JOHANNESBURG

2 Summary of the case

The Act6 consists of a wide range of procedures, plans and basic instruments which are designed to facilitate the provision of suitable housing for people in need, such as the residents of Slovo Park.7. The main issue of challenge in this case was whether the city's decision to move the residents of Slovo Park to Unaville met the administrative law standards of legality and fairness.8 The court found the city's decision to move the residents of Slovo Park to Unaville to be unreasonable and illegal .

3 Transformative constitutionalism, administrative law and social justice

The Constitution has both substantive and progressive aspirations,27 which are ultimately intended to promote social justice. One of the substantive and progressive aspirations that the Constitution has is to realize the right to access to adequate housing.

4 Did the Court in the Melani case further transformative constitutionalism and social

In Melani, the court further found that the city's conduct was subject to a standard of reasonableness.37 The standard of reasonableness reflects the principle of justification to which all branches of government are expected to adhere.38 In assessing whether the government is meeting its obligations to act reasonably under the second paragraph Article 26 of the Constitution, the measure adopted must be comprehensive, coherent, inclusive, balanced, flexible, transparent and properly designed and properly implemented. It is clear that the Court not only considered the legislative and policy frameworks of the UISP, but also considered the essential surrounding circumstances.

5 Concluding remarks

POST-APARTHEID JURISPRUDENCE AND THE RESIDUE OF APARTHEID JURISPRUDENCE: THE

The reflection on the prominence of jurisprudence in this article is further linked to the perception of the law as the wider reflection of what post-apartheid law should entail. The basic law's commitment to social transformation can be read in the basic law's preamble and section 27.

2 Locating the fallacy[ies]: From objective jurisprudence to a normative or ‘democratic’

• A brief background of the Marikana massacre: The prisoners of hope
• The facts of the Marikana massacre
• The alchemy of apartheid: The law from below .1 The use of the SLAPP tactic
• Legal Aid South Africa v Magiwana and others: A reflection of the hindring of access to justice and the
• Distinguishing criminal procedure from a commission of inquiry: Do commissions of enquiry truly facilitate social

Branch separation was another stumbling block to our post-apartheid transformation and jurisprudence. The failure of the Legal Aid Board to provide legal services to victims of the Marikana tragedy reinforces why post-apartheid jurisprudence is a 'mistake'.