Foreword

The full impact of the Covid-19 pandemic will be felt long after the last lockdowns have ended. It affected almost every aspect of our lives. The seventh AnnualInternational Mercantile Law Conference at the University of the Free State was no exception. Initially scheduled to take place in November 2021, it had to be postponed to the next year because of the pandemic. Arranging meetings from the vaccination queues and ending emails with “stay safe and well” marked the planning for the conference. In South Africa, an adjusted alert level 1 was in place from 1 October 2021 to 4 April 2022. When the conference finally took place in November 2022, it was a reunion of academics from all over who contributed and participated with newfound energy and perspective. Eventhough it did not explicitly form part of the call for papers, the question that was on everyone’s minds was how to address ourselves in the current context. How do we teach differently, write differently, and think differently in the wake of a pandemic which had far-reaching financial implications at all scales: the domestic, the national and international, and undoubtedly had a lasting impact on the field of Mercantile Law? In this special edition, we bring together contributions that had their genesis at this very conference, and our hope is that, given their origin, they will spark a fresh way of thinking

An An Ideological Land Reform Policy Shift of State Custodianship and ‘Transforming the Rural Land Economy’

In customary landholding practices land is regarded as more than an asset of economic value to be owned. African people’s rights in land and other natural resources exceed the idea of mere possession. To African rural land holders, land is not only a material resource for agricultural production, nor is the commercialisation and commoditisation of land the primary driving force for most customary landholding communities’ even though the land is productively used. This broader conceptualisation of the social function of land beyond the economic, aligns with modern property law on the proprietary function of property. However, excessive state limitations imposed on customary land tenure can hinder economically valuable property rights, but also other rights to social, cultural, and ontological resources embodied in the spirituality of African communities. Security of tenure for land reform beneficiaries cannot be secondary to commercialisation and commoditisation of the rural land economy in the national interest. Commercialisation and commoditisation are the by-products of recognised, protected, and enforceable property rights and not the “pre-requisites” or “qualifiers” for secure land tenure. Thus, the state custodial approach reflected in land reform law and policy that places an overemphasis on private property capitalism, above the constitutional mandate of security of land tenure is critically discussed. It is argued that if not carefully formulated transformative land reform law and policy can be conduits for a state custodianship approach that inadvertently reproduces apartheid-like ideology and preoccupations. Key words: Secure tenure, state custodianship, National Development Plan 2030, transformative land reform law and policy

The role of expert evidence in civil litigation: a critical analysis (Part 1)

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.   &nbsp

Secrecy of Taxpayer Information and the Disclosure thereof by an Order of Court in Terms of the Tax Administration Act 28 of 2011 and the Promotion of Access to Information Act 2 of 2000

The secrecy provisions of the Tax Administration Act 28 of 2011 (hereinafter, the TA Act) provide that taxpayer information may generally not be disclosed by the South African Revenue Service (hereinafter, SARS). One of the exceptions to the preservation of secrecy is when a court orders disclosure following an application regulated by secs. 69(2)(c), 69(3), 69(4), and 69(5) of the TA Act. This article considers this exception to taxpayer secrecy in terms of the TA Act, with a focus on the circumstances provided in sec. 69(5) of the TA Act, which must be met before the court may order disclosure. This is done by first considering the previous provisions relating to secrecy and the exception thereof by an order of court found in, for example, the Income Tax Act 58 of 1962, which applied before the commencement of the TA Act. The case law on the previous provisions and the more recent cases on the TA Act secrecy provisions are analysed. This article also considers the disclosure of taxpayer information by a court in terms of the Promotion of Access to Information Act 2 of 2000 (hereinafter,the PAI Act), in light of the recent finding by the Constitutional Court in Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others.1 In this case, the majority of the court declared certain provisions of the PAI Act and the TA Act constitutionally invalid, which results in the mandatory disclosure of taxpayer information when it is in the public interest, as contemplated in sec. 46 of the PAI Act. The PAI Act, in addition to the TA Act, now allows for a court order to disclose information in terms of the public interest procedure if access was refused by SARS. This begs the question: What is the interaction between a TA Act court order to disclose taxpayer information and a PAI Act court order to disclose taxpayer information if the requirements ofsec. 46 of the PAI Act are applicable and if access was refused by SARS

MILITARISM AND FEAR IN A TIME OF PANDEMIC IN THE PHILIPPINES: TOWARDS A THEOLOGY OF TRANSGRESSION

The pandemic was an opportunity for authoritarian regimes to intensify militarism and cultivate fear, resulting in the disablement of the most vulnerable in society. Fear dissipates when basic freedoms are at stake. People who once were afraid have learned to transgress, “to step across”, because they just had enough of the Duterte regime’s deception. In light of this context, I argue, like Michel Foucault, that transgression can be a positive notion and not opposed to transcendence. In fact, it belongs to  similar semantic cluster. An interruption can be viewed not as seeking attention, but rather as a cessation that aims for communion. Drawing from the lived experiences of persons with disabilities, I suggest a reversal of the negative perception of interruption to be incarnational, which can pave the way to a theology of transgression that is liberative

Shall we dance? Choreographing hospitality as key to interpersonal transformation

The icon of the Holy Trinity by Andrei Rublev (1425) is a celebration of hospitality. This article contemplates the icon through Henri Nouwen’s eyes, using his methodology, and shows how the spiritual practice of hospitality is key to interpersonal transformation. The article considers Nouwen’s proposition that hospitality involved creating a space of true freedom in which the stranger can become a friend. It discusses Beatrice Bruteau’s view that such a free space required a communion paradigm in interpersonal relations, before investigating Nouwen’s unique metaphor for interpersonal transformation, a movement from hostility to hospitality. Finally, the article formulates principles for the spiritual practice of hospitality for ordinary people in everyday life, by considering the contributions of contemporary spiritual writers, Barbara Brown Taylor and Christine Pohl. Brown Taylor believes that the practice of hospitality began with paying attention, and Pohl warns against the challenges associated with its practice

Interview with Nadine Bowers Du Toit

Nadine Bowers Du Toit is a professor in the Department of Practical Theology and Missiology at the Faculty of Theology at the University of Stellenbosch. She holds a PhD in Practical Theology (Theology and Development) and her research over the past 20 years has focused on the role of faith communities in addressing the intersecting issues of race, inequality, gender and poverty. Her most recent projects have been funded by grants from the National Research Foundation and the Nagel Centre for World Christianity. Besides lecturing, publishing and supervising postgraduate students, Nadine is often invited to address congregations, church leaders and faith-based organisations on topics pertaining to social justice. She sees herself as an “activist academic”, always advocating for more diverse voices to be heard: to this end, she chairs the transformation committee in the Faculty of Theology. Nadine is the director of the Unit for Religion and Development and serves on the boards of severalnon-governmental organisations. She is the current vice-president of the International Academy of Practical Theology

Holy communion in contagious times: Celebrating the eucharist in the everyday and online worlds

Richard Burridge’s volume could not have come at a better time. In the aftermath of the COVID pandemic, his discourse is on the virtual church and the celebration of Holy Communion online. Some Christian churches have gladly embraced the concept of online meetings and still allow their members to attend services in this way. Other Christian churches do not support online HolyCommunion. Instead, they support online church services only, without the Eucharist. Burridge’s book provides a raison d’etre for online forms of Christian worship

Self-realizing a lived existence in service of emancipation: Tsenay Serequeberhan’s activist hermeneutics

Through his own activistic hermeneutics, Sereque­ berhan crafts a philosophy which allows African(a) persons pathways to self­-realization and self­-eman­cipation from Western cultural imperialism. He does this through a unique reading of Heidegger to arrive at a hermeneutics of existence, and through Gadamer to posit a specific historicity which he calls ‘our heritage’. This article first charts how Serequeberhan articulates these concepts, and then explores their prescriptive, activist intent. The upshot of this is a stronger appreciation of Serequeberhan’s work and how it provides a fresh approach through which we can better understand existence in a globalized, post­colonial, late capitalist society. For Western readers especially, it offers a framework to better describe the relationship between, the self, others, and the historical interactions between them in a world fraught with enclosure and harmful ideologies