2024-03-28T16:03:25Z
https://perjournal.co.za/oai
oai:journals.assaf.org.za:article/24
2021-07-26T11:12:56Z
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"150221 2015 eng "
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What Constitutes a Benefit by Virtue of Section 186(2) of the Labour Relations Act 66 of 1995? Apollo Tyres South Africa (Pty) Ltd v CCMA 2013 5 BLLR 434 (LAC)
Fourie, Elmarie
University of Johannesburg https://orcid.org/0000-0002-8647-181X
The uncertainty surrounding the concept benefit as provided for in section 186(2) of the Labour Relations Act 66 of 1995 was created not by the courts but rather by the legislature. The concept is not defined and clearly has a wide ambit. In previous decisions the courts upheld a restrictive interpretation of benefits to maintain the divide between disputes of interest and disputes of rights and to ensure that issues that should be the subject of negotiation could not become issues that can be decided by an arbitrator. Previously the courts insisted that a benefit was something arising out of a contract or law. In the Apollo case the court had to determine what constitutes a benefit and if a benefit is limited to an entitlement which arises ex contractu or ex lege. The court found that the early retirement scheme was a benefit, although the employee at that stage did not have a contractual entitlement to the benefit and that the benefit was subject to the employer's discretion. What becomes clear from this case is that the unfair labour practice jurisdiction cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies. The Labour Appeal Court criticizes the distinction between salaries and remuneration drawn by our courts and describes it as artificial and unsustainable. Under the unfair labour practice regime the conduct of the employer may be scrutinized by the CCMA in at least two instances, namely when an employer fails to comply with a contractual obligation, an entitlement or right that an employee may have in terms of a statute, and secondly when an employer exercises a discretion under the contractual terms of a scheme conferring a benefit, including situations where the employer enjoys a discretion in terms of benefits provided in terms of a policy or practice - rights created judicially. This decision places the emphasis on the employer's actions and the unfairness of such acts or omissions.
Faculty of Law, North-West University, South Africa
2015-04-13 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/12353647
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015)
eng
Copyright (c) 2015 Elmarie Fourie
oai:journals.assaf.org.za:article/703
2019-04-15T08:30:50Z
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driver
"150825 2015 eng "
1727-3781
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Cloete Murray v Firstrand Bank Ltd T/A Wesbank [2015] ZASCA 39 (case note)
Laubscher, M
https://orcid.org/0000-0001-7825-5650
AFRIKAANSE OPSOMMING: In die appèlsaak Cloete Murray and another v FirstRand Bank Ltd wat onlangs deur die Appèlhof beslis is, het die benadering tot die interpretasie van wetgewing weereens in die kollig beland. Die hof in hierdie aangeleentheid het benadruk dat die beginpunt as dit kom by die interpretasie van wetgewing, behoort altyd die taal van die spesifieke wetgewing, ordonnansie of bepaling wees. Dit moet gebruik word te same met die konteks waarbinne die wetgewing geskep en gevorm is, asook die doel van die bepaling en die agtergrond waarbinne die bepaling geskep is. Indien die taal van die spesifieke bepaling ʼn onvermoë toon om die betekenis te ondersteun waarvoor geargumenteer word, behoort laasgenoemde nie aanvaar te word nie. Artikel 39(2) van die Grondwet kan ook net gebruik word om die waardes van die Grondwet te ondersteun gedurende wetsuitleg indien dit nie in die proses die taal van die spesifieke bepaling onnodig belas nie. Op grond hiervan het die hof die appellante se argumente vir ʼn wyer interpretasie van artikel 133(1) van die Maatskappywet 71 van 2008 verwerp en beslis ten gunste van die Respondent.
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ENGLISH SUMMARY: The approach to the interpretation of statutes once again received attention in the recent case Cloete Murray and another v FirstRand Bank Ltd which was decided in the Supreme Court of Appeal. The court , in this matter, emphasized the fact that when it comes to the interpretation of statutes, the starting point should always be the specific language of the statute, ordinance or section. This should be used together with the context within which the statute, ordinance or section has been created , as well as the purpose or objective of the statute, ordinance or section , and the background within which the statute, ordinance or section has been created. If the language of the specific statute, ordinance or section reflects an inability to support the specific meaning that is being argued, the latter should not be accepted. Section 39 (2) of the Constitution can also only be used to support and foster the values of the Constitution during interpretation if in the process of interpretation it does not unnecessarily burden the language of the specific statute or section. Based on this approach the court rejected the appellants’ appeal for a wider interpretation of section 133 (1) of the Companies Act 71 of 2008 , and therefore found in favour of the Respondent.
Faculty of Law, North-West University, South Africa
2015-12-11 00:00:00
Peer-reviewed article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/703
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition
eng
Copyright (c) 2015 M Laubscher
oai:journals.assaf.org.za:article/726
2019-04-26T06:28:14Z
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"170517 2017 eng "
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A Targeted Outsider's Right to Challenge Local Winding-Up Proceedings PricewaterhouseCoopers v Saad Investments Co Ltd 2014 UKPC 35 (10 November 2014), 2014 1 WLR 4482 (PC)
Smith, Alastair David
University of South Africa
The problem in this case was that the Cayman liquidators, frustrated by the unhelpfulness of the company’s previous auditors in supplying documents and information to help them get to the bottom of the company’s problems, then obtained a winding-up order in Bermuda, the auditors’ home jurisdiction, to have them examined. The auditors appealed successfully to the Privy Council in London to have the winding-up stayed. The facts and the reasoning of this senior court are described, and then critically discussed in this case comment. The auditors were erroneously added to the statutory list of persons who may apply to the court for the stay of the winding-up proceedings. Still, the decision may be supported for the finding that, on the particular facts of the case, the auditors had standing to challenge the winding-up application because the Bermudian court of first instance had no jurisdiction under the relevant statutes and the auditors were the direct targets of the application to wind up the company and examine them. The outcome of the decision carries important implications for the development of company law in England and Bermuda, and for the corresponding company law in South Africa, where the decision is of persuasive authority.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/726
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Alastair David Smith
oai:journals.assaf.org.za:article/731
2019-04-25T13:47:43Z
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"170517 2017 eng "
1727-3781
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Step-Parent Adoption Gone Wrong: GT v CT [2015] 3 ALL SA 631 (GJ)
Skosana, Themba
UNISA
Ferreira, Sandra
UNISA http://orcid.org/0000-0002-6500-5561
Step-parent adoption happens where a child is adopted by the spouse or civil union partner of a biological parent. This is a drastic invasion into the life of a child because (except if provided for otherwise) an adoption order terminates all parental responsibilities and rights any person had in respect of a child immediately before the adoption, and confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent. Under specific circumstances an adoption order may also be rescinded, again disrupting the life of the child dramatically. Because of the immense impact on a child, rescission of an adoption order has to be handled with kid gloves.
In Turner v Turner two children had been legally adopted by their step-father while the Child Care Act was in operation. After the implementation of the Children’s Act, however, he applied for these adoption orders to be rescinded. The court was faced with a situation where the application had been brought in contravention of the maximum two-year-period as prescribed by the Children’s Act. Although it was argued that non-compliance with this statutory requirement prevented the court from adjudicating this matter, Mokgoatlheng J focused on the best interests of the child, considered the legality of the adoption orders (why?), and ultimately concluded that the supremacy of the best interests of the child meant that he was not precluded from hearing the application. In the end he ordered rescission of the adoption orders. The judgment cannot be supported.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/731
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Themba Skosana, Sandra Ferreira
oai:journals.assaf.org.za:article/733
2019-04-26T06:28:57Z
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"170517 2017 eng "
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Derivative Misconduct and Forms thereof: Western Refinery Ltd v Hlebela 2015 36 ILJ 2280 (LAC)
Maloka, Tumo Charles
Nelson R Mandela School of Law, University of Fort Hare, South Africa
Western Platinum Refinery Ltd v Hlebela 2015 ZALAC 20 (“Hlebela”) required the Labour Appeal Court to grapple with difficult questions presented by generic dilemma which confronts an employer faced with clear evidence of recurrent theft of precious minerals, but is unable to identify the actual culprits, nor are the employees disposed or willing to co-operate with the employer in tracking down the perpetrator(s). Suddenly, the police informed the employer that an employee who had accumulated wealth was a person of interest in their investigations. However, they give no information about the employee being engaged, to their knowledge, in particular illegal activities.
Hlebela answered the nagging question: what is the appropriate way to discipline an employee who has actual knowledge of the wrongdoing of others or who has actual knowledge of information which the employee subjectively knows is relevant to unlawful conduct against the employer’s interests? The categorical answer is to charge the employee with material breach of the duty of good faith, particularising the knowledge allegedly possessed and alleging a culpable non-disclosure.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/733
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Tumo Charles Maloka
oai:journals.assaf.org.za:article/1035
2019-04-23T08:14:52Z
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"170103 2017 eng "
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Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GNP): Intermediary Appointment Reports and a Child's Right to Privacy Versus the Right of an Accused to Access to Information
Bekink, Mildred
University of South Africa
General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
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text/html
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https://perjournal.co.za/article/view/1035
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Mildred Bekink
oai:journals.assaf.org.za:article/1092
2019-04-26T06:37:37Z
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"170517 2017 eng "
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Extending Recognition of Indigenous Burial Practices in Selomo v Doman 2014 JDR 0780 (LCC)
Parker, Judy
University of KwaZulu-Natal https://orcid.org/0000-0001-8075-6083
Zaal, Frederick Noel
University of KwaZulu-Natal
Burying deceased family members in familial gravesites close to the homestead of the living has been a well-established practice in Southern Africa for many centuries. In terms of indigenous cultural and religious norms proximate burials are essential for enabling ancestors to commune amongst themselves and with their living descendants. In the colonial and apartheid eras many African communities lost ownership of their land. One of the consequences was that they needed permission from white landowners to continue with burials in established gravesites. In the democratic era the legislature sought to reintroduce a burial right for rural black land occupiers. Section 6(2)(dA) of the Extension of Security of Tenure Act 62 of 1997 allowed occupiers to assert a right of familial burial as against landowners, provided certain conditions were met. In Selomo v Doman 2014 JDR 0780 (LCC) Spilg J permitted a burial despite the fact that the applicant and deceased had not been resident near their family gravesite for many years. In our analysis of the judgment we suggest that the court’s attempts to find justification in the Extension of Security of Tenure Act 62 of 1997 and the Land Reform (Labour Tenants) Act 3 of 1996 were misconstrued. With proximate familial burials being essentially a matter of respect for dignity and indigenous culture, the court should have engaged in a deeper analysis of constitutional rights.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
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application/epub+zip
https://perjournal.co.za/article/view/1092
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Judy Parker, Frederick Noel Zaal
oai:journals.assaf.org.za:article/1153
2019-04-26T06:27:33Z
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"170517 2017 eng "
1727-3781
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The Deadlock Principle as a Ground for the Just and Equitable Winding Up of a Solvent Company: Thunder Cats Investments 92 (Pty) Ltd v Nkonjane Economic Prospecting Investment (Pty) Ltd 2014 5 SA 1 (SCA)
Maloka, Tumo Charles
Nelson R Mandela School of Law, University of Fort Hare, South Africa
Muthugulu-Ugoda, Shandukani
University of Fort Hare https://orcid.org/0000-0003-3013-4096
The question addressed by the Supreme Court of Appeal in Thunder Cats Investment 92 (Pty) Ltd v Nkonjane Economic Prospecting & Investments (Pty) Ltd 2014 5 SA 1 (SCA) (hereafter the "Thunder Cats") provides much-needed guidance on the deadlock principle as well as the breadth and scope of the "just and equitable ground for winding up in terms of s 81(1)(d) (iii) of the Companies Act 71 of 2008. The facts, the issues and the contextual authority of Thunder Cats also bring to fore the lacuna in the just and equitable winding up provisions of the current Companies Act which lacuna has so far received no judicial or academic consideration. This Note contends the fact that the just and equitable winding up provisions do not countenance any deviation from the statutory prescriptions once the factual grounds for just and equitable winding up have been established is not in consonance with the spirit, purport and objects of Companies Act, and, in particular those of Chapter Six of the Act which have introduced the innovative business rescue scheme into South African corporate law landscape. The facts, the issues and the contextual authority of Thunder Cats will be reviewed at length in the ensuing discussion.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/1153
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Tumo Charles Maloka, Shandukani Muthugulu-Ugoda
oai:journals.assaf.org.za:article/1156
2019-04-25T12:30:05Z
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"170517 2017 eng "
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Compensation for What? An Analysis of the Outcome in Arun Property Development (PTY) LTD v Cape Town City
Slade, Bradley
University of Stellenbosch https://orcid.org/0000-0001-8855-1269
In Arun Property Development (Pty) Ltd v Cape Town City the Constitutional Court awarded compensation for land that vested in the City of Cape Town in terms of a regulatory framework. The regulatory framework, sections 25 and 28 of the Cape Land Use Planning Ordinance of 1985 (LUPO), provides that land needed for public streets and places and indicated as such on a subdivision plan should vest in the local authority concerned, but without compensation if that land is based on the normal need of providing the particular development with such public streets and places. The appellant argued that since land in excess of the normal need also vested in the City, it had a right to be compensated for the excess land that vested in the City.
The Court, overturning two Supreme Court of Appeal decisions, awarded compensation. The Court hinted that the compensation was for the expropriation of the appellant's land that was excess to the normal need. In the absence of a formal expropriation procedure, this case note investigates whether the compensation could have been awarded for statutory expropriation or constructive expropriation.
Therefore, the question that is posed is whether the alleged expropriation for which the Court awarded compensation can be classified as either statutory expropriation or constructive expropriation. It is pointed out that the Court accepted that section 28 of the LUPO constitutes a development contribution for the land based on the normal need. In terms of the notion of development contributions, a developer has to donate land to the local authority concerned if that land is required to provide the particular development with public streets and places. A development contribution, as part of the administrative process of approving developments, is regulatory in nature and its validity is judged in terms of the requirements for a valid deprivation of property.
It is argued that since the Court interpreted section 28 of the LUPO to provide for development contributions, the alleged expropriation cannot be classified as statutory expropriation. Statutory expropriation occurs when legislation expropriates property directly through mere promulgation. In this case, the excess land vested in the City only after an administrative action was taken to approve a subdivision plan. It is also argued that statutory expropriation cannot be recognised in South African law, due to the constitutional requirements for a valid expropriation in section 25(2) of the Constitution.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/1156
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Bradley Slade
oai:journals.assaf.org.za:article/1160
2019-04-26T06:11:13Z
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"170517 2017 eng "
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The Impact of Minority Status in the Application of Affirmative Action: Naidoo v Minister of Safety and Security 2013 5 BLLR 490 (LC)
Papacostantis, Helen
WITS
Mushariwa, Muriel
WITS https://orcid.org/0000-0001-9099-6064
Affirmative action measures within the workplace seek to ensure equal employment opportunities and create a workforce that is representative of South African society. Accordingly, employers need to ensure that the substantive goal of equality is achieved when implementing affirmative action. One of the challenges faced by employers is the choice of beneficiary from designated groups which is diverse and unequal within itself. This paper seeks to address this challenge by looking at the definition given to beneficiaries of affirmative action and the concept of multi layered disadvantage within the Employment Equity Act. The paper will focus on the decision in Naidoo v Minister of Safety and Security and National Commissioner of the South African Police Service which is an example of the disadvantages experienced by members of the designated groups who are also part of a minority group within the designated groups. Particular focus will be placed on the disadvantages experienced by a black female who is also part of a minority. This paper highlights the multi-layered nature of disadvantage experienced by such members of the designated groups and the need to ensure that new forms of disadvantage are not created in the implementation of affirmative action policies by using a situation sensitive approach. It argues that affirmative action as a means to an end needs to evolve with the understanding that it functions within an ever changing social and economic environment. If such changes are ignored the true beneficiaries of affirmative action will not be given recognition and the desired end of creating a workforce representative of South African society together with the goal of substantive equality cannot be realised.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/1160
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Helen Papacostantis, Muriel Mushariwa
oai:journals.assaf.org.za:article/1162
2019-04-25T13:30:54Z
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"170517 2017 eng "
1727-3781
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Planning and Arun's (not so Straight and Narrow) Roads
Van Wyk, Jeannie
UNISA
Arun Property Development (Pty) Ltd wished to subdivide portions of the farm Langeberg 311, Durbanville. The 1988 structure plan for the area had indicated that certain roads would traverse the property. These and other roads all formed part of a new subdivision known as Sonstraal Heights. As is customary, the ownership of the roads in the subdivision vested in the municipality in terms of section 28 of the Land Use Planning Ordinance 15 of 1985 (C) (LUPO) on the date of approval of the subdivision. Central to this provision is that no compensation is payable to the developer if the provision of the public roads is based on the normal need therefor arising from the subdivision. Since the developer was of the opinion that the roads it had provided exceeded the normal need, the issue that had to be resolved was whether compensation must be paid for roads beyond what would normally be required for a subdivision. The main issue that the courts, from the Western Cape High Court to the Constitutional Court in Arun Property Development (Pty) Ltd v City of Cape Town 2015 2 SA 584 (CC), had to deal with was whether the vesting of roads beyond the normal need therefor arising from the subdivision amounted to an expropriation of land for which compensation is payable in terms of section 25(2) of the Constitution. This case note looks at the different stages of the case, and in the process highlights the historical and legislative background and the subdivision process. It shows that the vesting of the ownership of roads in the municipality is similar to the payment of a development contribution, both of which can be categorised as deprivations of property in terms of the constitutional property clause. On 1 July 2015 LUPO was effectively superseded by the new Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) and the Western Cape Land Use Planning Act 3 of 2014 (LUPA). Since SPLUMA does not and LUPA does contain a reference to the "normal needs" provision, the implications of Arun for the new legislative dispensation are addressed.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/1162
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Jeannie van Wyk
oai:journals.assaf.org.za:article/1221
2019-04-26T06:40:04Z
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"170517 2017 eng "
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Some Aspects of South African Cross-Border Insolvency Relief: The Lehane Matter
Smith, Alastair David
University of South Africa
The Lehane matter wound its way through the Cape Provincial Division of the High Court and reached the Supreme Court of Appeal. Mr Dunne, the debtor, lived in the United States of America and ran an international web of companies. One of these companies, Lagoon Beach Hotel, operated a Cape Town hotel. Mr Dunne later filed for chapter 7 bankruptcy in the United States and soon was also bankrupted by the Irish High Court. The Irish official trustee, Lehane, applied to the Cape court for the recognition of his status as a foreign trustee and for an anti-dissipation order preventing the disposal of South African property to which Mr Dunne was connected. Lehane succeeded at every stage of the South African proceedings.
Initially, Steyn J recognised Lehane as the trustee as though a sequestration order had been granted against Mr Dunne in terms of the Insolvency Act 1936, thus diverging from the approach taken by the Judicial Committee of the Privy Council in Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda). Subsequently, Yekiso J's approach to applying the Insolvency Act without derogating from its generality opens up the possibility of applying section 21 of the Insolvency Act to significant effect against Mrs Dunne's South African property. Yet the territorialist restriction in Yekiso J's order that only creditors with causes of action which arose in South Africa were entitled to claim against the insolvent estate excluded many foreign creditors, even those from Ireland.
Of the many issues raised by the Lagoon Beach Hotel company, two that are chosen for discussion in this case note are the possible application of the automatic stay under section 362 of the United States Bankruptcy Code 1978 to the South African proceedings, and the standing of Lehane because of the litigants' dispute whether Mr Dunne was domiciled in the United States or Ireland.
Yekiso J and subsequently Leach JA held that the American automatic stay did not govern the South African proceedings. Significantly, the American and the Irish trustees were co-operating with respect to proceedings in Ireland and South Africa that involved Mr Dunne. And Leach JA deftly deferred to the Irish court the decision regarding the application of the American automatic stay and its relevance to the Irish proceedings.
As for the disputed domicile of Mr Dunne, Yekiso J and Leach JA both considered that Mr Dunne had retained his Irish domicile. The established principles of recognising a foreign domiciliary trustee before he might deal with South African property, whether movable or immovable, were confirmed. Leach JA, however, went on to discuss the assistance that might cautiously be accorded to Lehane if Mr Dunne were domiciled elsewhere than in Ireland. Even then, the relevance of domicile could not be gainsaid.
In the comments, it is pointed out that trustees appointed in countries other than the insolvent's domicile may still be recognised by South African courts. The insolvent's submitting to the jurisdiction of a court that is not the court of his domicile is discussed; on its facts, the cited authority does not bear out the relevant principle. And the possibility of recognising non-domiciliary trustees in exceptional circumstances and for exceptional convenience is explored. The cases cited in support of this principle are shown to yield differing results.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/1221
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Alastair David Smith
oai:journals.assaf.org.za:article/1240
2019-04-26T06:36:50Z
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Authority by Representation – A New Form of Authority?
Sharrock, Robert Douglas
University of KwaZulu-Natal https://orcid.org/0000-0002-0194-0534
The majority decision in Makate v Vodacom (Pty) Ltd recognises a new form of actual authority – authority by representation. However the decision is based on a misinterpretation of English law and is inconsistent with an extensive body of South African case law and the view held by several South African text–book writers. It remains to be seen whether the decision will be regarded as binding authority. If the it is accepted as binding, the principle of agency by representation which it establishes will need to be clarified and developed in certain respects to ensure that it does not operate unfairly.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/1240
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Robert Douglas Sharrock
oai:journals.assaf.org.za:article/1246
2019-04-26T06:34:20Z
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"170517 2017 eng "
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Delinquent Directors under the Companies Act 71 of 2008: Gihwala v Grancy Property Limited 2016 ZASCA 35
Cassim, Rehana
University of South Africa https://orcid.org/0000-0001-6179-2361
The Companies Act 71 of 2008 has introduced into our company law an innovative provision which permits a wide range of persons to apply to court to declare a director delinquent. This provision is contained in section 162 of the Companies Act 71 of 2008. The effect of an order of delinquency is that a person is disqualified for a specified period from being a director of a company. In Gihwala v Grancy Property Limited [2016] ZASCA 35 the Supreme Court of Appeal was faced with some important questions surrounding the declaration of delinquency of a director. It was contended by the appellants that section 162(5)(c) of the Companies Act 71 of 2008 is unconstitutional on the grounds that it was retrospective in its application, and that there was no discretion vested in a court to refuse to make a delinquency order or to moderate the period of such order to less than seven years. It was further contended that section 162(5)(c) of the Companies Act 71 of 2008 infringed the constitutional right to dignity, the right to choose a trade, occupation or profession and the right of access to courts. In assessing these contentions, the SCA addressed and clarified some important questions surrounding the declaration of delinquency of a director. This note discusses and analyses the judgment of the SCA. It points out some anomalies in section 162 of the Companies Act 71 of 2008. This note contends that, in assessing the rationality of section 162(5) of the Companies Act 71 of 2008, the SCA ought to have considered the equivalent provisions in leading foreign jurisdictions that have influenced our Act, particularly since section 5(2) of the Companies Act 71 of 2008 permits a court where appropriate to consider foreign law in interpreting the Act. Further, this note analyses the test applied by courts in determining whether the offences set out in section 162(5) of the Companies Act 71 of 2008 have been committed, and argues that the courts ought to make more effective use of their power to impose ancillary conditions to declarations of delinquency.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/1246
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Rehana Cassim
oai:journals.assaf.org.za:article/1248
2019-04-26T06:24:42Z
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"170517 2017 eng "
1727-3781
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Doctrinal Sanction and the Protection of the Rights of Religious Associations: Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa (726/13) [2014] ZASCA 151
De Freitas, Shaun
Scholarship on the protection of religious rights and freedoms in the context of religious associations in South Africa has gained in momentum since the decision by the Equality Court in Johan Daniel Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park some years ago. Emanating from this were diverse scholarly insights on what the parameters of religious associations should be, with specific focus on sexual conduct, religious doctrine and membership of religious associations. The South African judiciary has not been confronted with a similar challenge since the decision. However, with the advent of the judgment by the Supreme Court of Appeal in Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa in 2014, questions as to the parameters of the rights of religious associations in the context of sexual conduct and religious doctrine again present themselves. This article consequently analyses the mentioned judgment by the Supreme Court of Appeal to further an understanding of the parameters of associational rights of religious institutions against the background of a truly plural and democratic society, as supported by the Constitution of South Africa.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/1248
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Shaun de Freitas
oai:journals.assaf.org.za:article/1282
2019-04-26T06:32:29Z
per:CN
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"170517 2017 eng "
1727-3781
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Taking a Second Bite at the Appeal Cherry: Molaudzi v S
Jordaan, Donrich
Research Fellow, Flagship for Biotechnology and Medical Law, Department of Jurisprudence, College of Law, University of South Africa https://orcid.org/0000-0002-7346-3490
The principle of res judicata is well-established in our law: essentially it means that parties to a dispute have only one metaphorical "bite at the cherry". The "bite" can entail appealing through the hierarchy of courts, but once the parties have exhausted their appeals, they cannot re-litigate the same dispute. However, in the recent case of Molaudzi v S 2015 2 SACR 341 (CC) the appellant attempted to appeal to the Constitutional Court twice: the first time the application for leave to appeal was dismissed; the second time the application was granted and the appeal upheld. The appellant got a second "bite at the cherry". In Molaudzi v S the Constitutional Court developed the common law by creating an interest-of-justice exception to the principle of res judicata and – for the first time in the Constitutional Court's history – overturned one of its own judgements. In this case note I present the background of the case of Molaudzi v S, analyse the judgement, and differentiate it from another Constitutional Court case that dealt with res judicata, namely Mpofu v Minister for Justice and Constitutional Development 2013 2 SACR 407 (CC).
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/1282
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 0 Donrich Jordaan
oai:journals.assaf.org.za:article/1308
2019-04-23T09:16:48Z
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"170316 2017 eng "
1727-3781
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Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa
Tuba, Maphuti David
University of South Africa https://orcid.org/0000-0001-6703-0480
On 22 May 2015, the Supreme Court of Appeal (“SCA”) handed down a judgment in the matter of Lodhi 5 Properties Investments Cc v Firstrand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on loan in terms of Islamic law (Shariah law) may be a defence for a claim for mora interest in term of a loan agreement. This note critically discusses the judgement in light of the approach adopted by the SCA with regard to addressing dispute arising from a contract that has Islamic law as a governing law. As this is the first case that came before the SCA in South Africa, this note critically analyses how this court discussed the applicable principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court’s assertion that a claim for mora interest has nothing to do with and is not affected by the Shariah law's prohibition against payment of interest on a loan debt. It also looks at the SCA’s approach (as a common law court) with regard to the enforcement of Islamic banking law principles. This judgement raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion, in light of the continuing growth and expansion of Islamic banking and finance law in South Africa.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/1308
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Maphuti David Tuba
oai:journals.assaf.org.za:article/1637
2019-04-23T09:21:50Z
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"170412 2017 eng "
1727-3781
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The Law Regarding Pension Interest in South Africa Has Been Settled! Or Has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162
Marumoagae, Motseotsile Clement
University of the Witwatersrand http://orcid.org/0000-0002-3926-4420 http://orcid.org/0000-0002-3926-4420
This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
application/pdf
text/html
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https://perjournal.co.za/article/view/1637
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Motseotsile Clement Marumoagae
oai:journals.assaf.org.za:article/1663
2019-09-11T07:45:45Z
per:CN
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"170517 2017 eng "
1727-3781
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The Rules of an Occupational Retirement Fund and the Problem of Defaulting Employers: A Reconsideration of Orion Money Purchase Pension Fund (SA) v Pension Funds Adjudicator
Nkosi, Thulani
University of the Witwatersrand
This paper reflects on the ongoing challenges presented by certain employers who, whilst deducting occupational retirement fund contributions from their employees' salaries, fail to pay over those contributions to the relevant occupational retirement funds. These employers also often fail to register themselves or their employees as participating members of occupational retirement funds when they are supposed to. Such failures to register with the relevant occupational retirement funds and to pay over fund contributions have disastrous effects on the employees who are at the receiving end of these unlawful practices. This is the case because employees lose the value and use of their salaries through the deductions, and also the benefits of their occupational retirement funds.
Although the Pension Funds Act 24 of 1956 is sufficiently responsive and provides adequate mechanisms to guide against this scourge, it is this paper's argument that occupational retirement funds themselves have not done their bit in enforcing the Pension Funds Act. The failure on the part of the funds to enforce the Pension Funds Act by ensuring that fund contributions are collected from participating employers has resulted in, and continues to result in, untold losses on the part of the employees. Properly considered, the paper submits that the failure by occupational retirement funds to enforce the Pension Funds Act has the potential of unjustifiably limiting several of the employee members' constitutional rights.
It is not good enough, so argues the paper, for occupational retirement funds to have rules that prohibit them from paying retirement fund benefits where no contributions have been received. It is also not good enough for courts and the office of the PFA to blindly enforce the rules of occupational retirement funds without consistently subjecting them to the Pension Funds Act and the Constitution for validity and legality. It is on this basis that the case of Orion Money Purchase Pension Fund (SA) v Pension Funds Adjudicator is challenged. The case is authority for the principle that the only available remedy to an employee who has been cheated out of retirement fund benefits owing to the employer's failure to make fund contributions is one that compels the fund to calculate those outstanding contributions and demand that total sum from the employer. For various reasons this does not address the problem of defaulting employers, which can be addressed only by properly enforcing the Pension Funds Act and also consistently subjecting the rules to the Act in cases of disputes.
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/1663
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Thulani Nkosi
oai:journals.assaf.org.za:article/1688
2020-01-08T08:02:18Z
per:CN
driver
"190702 2019 eng "
1727-3781
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The Right to be Granted Access over the Property of Others in Order to Enter Prospecting or Mining Areas: Revisiting Joubert v Maranda Mining Company (PTY) LTD [2009] 4 ALL SA 127 (SCA)
van der Schyff, Elmarie
North-West University http://orcid.org/0000-0003-3017-5277
A new mineral law regime was introduced when the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) commenced. Common law mineral rights were abolished and replaced by statutorily created rights to minerals. Prospecting rights and mining rights granted in terms of the MPRDA entitle their holders, amongst other things, to enter the designated prospecting or mining area in order to commence with and conduct prospecting or mining activities. This contribution focusses on the question whether the entitlement to "enter" the land to which a specific prospecting or mining right relates automatically includes the ancillary right to be granted access over the property of others in order to enter the designated prospecting or mining area. It is important to determine the source or origin of the right to access in the new regime and to differentiate between "access" and "entry". It would not be just or justifiable summarily to accept that legal principles that developed under a completely different regime apply unchanged in a new regime.
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
application/pdf
text/html
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https://perjournal.co.za/article/view/1688
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Elmarie van der Schyff
oai:journals.assaf.org.za:article/1737
2019-04-17T09:24:48Z
per:CN
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"180327 2018 eng "
1727-3781
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Integration of the Bride as a Requirement for a Valid Customary Marriage: Mkabe v Minister of Home Affairs 2016 ZAGPPHC 460
Bakker, Pieter
University of South Africa http://orcid.org/0000-0001-7320-9399
Since the Recognition of Customary Marriages Act 120 of 1996 was promulgated in 15 November 2000 the courts are faced with the daunting task to determine whether a customary marriage is valid under the Act. The courts find it troublesome to determine exactly what the essential requirements under the living customary law are. One of the issues the courts have to deal with is the question whether the incorporation of a bride into her husband's family is an essential requirement for a valid customary marriage or can the families waive the requirement or condone non-compliance? The court in Mkabe v Minister of Home Affairs [2016] ZAGPPHC 460 found that the requirement can be waived or condoned. This case note criticises the Mkabe decision and illustrates why the incorporation of the bride is indeed an essential requirement for a valid customary marriage.
Faculty of Law, North-West University, South Africa
2018-01-15 10:37:20
Peer-reviewed article
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https://perjournal.co.za/article/view/1737
Potchefstroom Electronic Law Journal; Vol. 21 (2018)
eng
Copyright (c) 2018 Pieter Bakker
oai:journals.assaf.org.za:article/2159
2019-02-28T08:50:36Z
per:CN
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"170410 2017 eng "
1727-3781
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Spatial Practices in Lowliebenhof: The Case of Maphango v Aengus Lifestyle Properties (Pty) Ltd
De Villiers, Isolde
University Of Pretoria https://orcid.org/0000-0002-9384-6958
In Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 5 BCLR 449 (CC) the question before the Constitutional Court was when a landlord may legally cancel contracts of lease and evict tenants. In answering this question the court had to consider the constitutional protection against arbitrary evictions in section 26(3) and the provisions of the Rental Housing Act 50 of 1999. The applicants sought a declaratory order that the landlord had terminated their leases unlawfully, because the termination had been intended to double (and in some instances more than double) the rent. The applicants argued that this escalation violated contractual and legislative provisions governing the procedure and conditions under which a landlord can increase the amount of a rental. The Constitutional Court found in favour of the tenants and postponed the appeal to allow any of the parties to lodge a complaint at the Gauteng Rental Housing Tribunal. The narrow focus of this note is the manner in which the Constitutional Court in the Maphango case interpreted the concept of "practice" in the Rental Housing Act and how this in turn corresponds to perceptions of urban spaces. The inquiry is informed by the spatial justice turn and relies on the works of Michel de Certeau, Henri Lefebvre and Doreen Massey
Faculty of Law, North-West University, South Africa
2014-12-19 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/2159
Potchefstroom Electronic Law Journal; Vol. 17 No. 5 (2014)
eng
Copyright (c) 2017 Isolde De Villiers
oai:journals.assaf.org.za:article/2160
2019-02-28T08:50:36Z
per:CN
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"170410 2017 eng "
1727-3781
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Rectification and Party Misdescription: To what extent is Rectification Competent or Useful?
Sharrock, Robert
University Of KwaZulu-Natal https://orcid.org/0000-0002-0194-0534
The decision in Osborne v West Dunes Properties 176 2013 6 SA 105 (WCC) raises some interesting issues regarding the competence or usefulness of rectifying an incorrect party description in a contract required by law to be in writing and signed. This case note explains and critically analyses the court's reasoning on these issues and suggests that courts should bear in mind certain important principles when dealing with a problem of this nature.
Faculty of Law, North-West University, South Africa
2014-12-19 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/2160
Potchefstroom Electronic Law Journal; Vol. 17 No. 5 (2014)
eng
Copyright (c) 2017 Robert Sharrock
oai:journals.assaf.org.za:article/2162
2019-02-28T08:50:36Z
per:CN
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"170410 2017 eng "
1727-3781
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Limiting Organisational Rights of Minority Unions: POPCRU v Ledwaba 2013 11 BLLR 1137 (LC)
Cohen, Tamara
University Of KwaZulu-Natal
The Labour Relations Act 66 of 1995 unequivocally promotes the policy choice of majoritarianism, in furtherance of orderly collective bargaining and the democratisation of the workplace. The majoritarian model aims to minimise the proliferation of trade unions in a single workplace and to encourage the system of a representative trade union.
Section 18(1) of the Labour Relations Act enables majority unions to enter into collective agreements setting thresholds of representivity for the granting of access, stop-order and trade-union leave rights to minority unions. In furtherance of the majoritarian framework, collective agreements concluded between majority unions and employers can be extended to non-parties to the agreement in terms of section 23(1)(d) of the Labour Relations Act provided specified requirements are satisfied. In Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (POPCRU) the Labour Court was required to consider if the collective agreements concluded between the employer and the majority union could be relied upon to prohibit the minority union from securing organisational rights. In so doing, the Labour Court had to reconcile the fundamental principle of freedom of association and the right to fair labour practices (to organise and engage in unfettered collective bargaining) within the context of the majoritarian framework. The Labour Court in POPCRU held that the collective agreement concluded with the majority union must have preference over the organisational rights of minority unions, in keeping with the principle of collective bargaining hierarchy and the legislative framework.
This case note argues that, while the finding of the labour court in POPCRU is correct on the facts and is in keeping with the principle of majoritarianism, the legislative model may no longer be suitable within the context of the current socio-economic and political landscape. Strike violence, loss of confidence in existing bargaining structures, and the alienation of vulnerable employees from majority unions has resulted in minority unions taking up the cudgels of frustrated and disempowered employees, as witnessed in the Marikana experience. The note suggests that in the light of the changing dynamics of the collective bargaining environment, it may be time to revisit the majoritarian model.
Faculty of Law, North-West University, South Africa
2014-12-19 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/2162
Potchefstroom Electronic Law Journal; Vol. 17 No. 5 (2014)
eng
Copyright (c) 2017 Tamara Cohen
oai:journals.assaf.org.za:article/2513
2019-02-28T08:46:24Z
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"170529 2017 eng "
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The Bengwenyama Trilogy: Constitutional Rights and the Fight for Prospecting on Community Land
Humby, Tracy-Lynn
University of Witwatersrand https://orcid.org/0000-0003-2925-9449
Although developments subsequent to the judgment have undermined the value of the decision for the community involved, the Constitutional Court's judgment in the Bengwenyama matter provides a welcome precedent on the provisions of the Mineral and Petroleum Resources Development Act 28 of 2002 that deal with the existence of an internal appeal, the nature of consultation with interested and affected parties, the role of environmental considerations in the granting of prospecting rights, and the procedural obligations of the DMR in relation to the community preferent right to prospect or mine. However, its deliberations on the duty to consult and particularly the procedural implications of the community preferent right to prospect do not go far enough into the dynamics underlying the implementation of the law, or tackle the problematic linkages between the MPRDA, the law relating to communal land tenure, and the processing of land claims.
Faculty of Law, North-West University, South Africa
2012-11-08 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/2513
Potchefstroom Electronic Law Journal; Vol. 15 No. 4 (2012)
eng
Copyright (c) 2017 Tracy-Lynn Humby
oai:journals.assaf.org.za:article/2514
2019-02-28T08:46:24Z
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"170529 2017 eng "
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Sink or Swim? Debt Review's Ambivalent "Lifeline" ... a Second Sequel to "… A Tale of Two Judgments" Nedbank v Andrews (240/2011) 2011 ZAECPEHC 29 (10 May 2011); Firstrand Bank Ltd v Evans 2011 4 SA 597 (KZD) and Firstrand Bank Ltd v Janse van Rensburg 2012 2 All SA 186 (ECP)
Steyn, Lienne
University of KwaZulu-Natal https://orcid.org/0000-0001-8448-8717
The interface between the National Credit Act 34 of 2005 and the Insolvency Act 24 of 1936 has been the object of our courts' attention in a number of recent cases including Ex parte Ford and Two Similar Cases 2009 3 SA 376 (WCC), Investec Bank Ltd v Mutemeri 2010 1 SA 265 (GSJ), Naidoo v ABSA Bank Ltd 2010 4 SA 597 (SCA) and, more recently, Nedbank v Andrews (240/2011) 2011 ZAECPEHC 29 (10 May 2011), FirstRand Bank Ltd v Evans 2011 4 597 (KZD) and FirstRand Bank Ltd v Janse van Rensburg 2012 2 All SA 186 (ECP).
The question raised in all of the three most recent cases was whether or not a debtor's application for debt review in terms of the National Credit Act constitutes an "act of insolvency" in terms of section 8 of the Insolvency Act, upon which a creditor may rely in an application for the compulsory sequestration of the debtor's estate. If it does, it would mean that by resorting to the debt relief measures provided by the National Credit Act a debtor commits the very act on which a creditor may base an application for a sequestration order which, if granted, will render the debtor's estate insolvent and bring about the liquidation of his assets. From the debtor's perspective, this is probably precisely the situation that he seeks to avert by applying for debt review. Further, sequestration would frustrate the stated purpose of the National Credit Act, which is that debtors should take responsibility for their debts by satisfying them in full. Concurrent creditors might also ultimately receive a dividend which falls far short of what is due to them.
The question of whether a debtor's resorting to debt review may or should be the very act that triggers his estate's sequestration and its attendant consequences is an important issue, the treatment of which impacts significantly on the efficacy of the South African consumer debt relief system. This article analyses the most recent judgments and considers whether or not statutory regulation of the position is required.
Faculty of Law, North-West University, South Africa
2012-11-08 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/2514
Potchefstroom Electronic Law Journal; Vol. 15 No. 4 (2012)
eng
Copyright (c) 2017 Lienne Steyn
oai:journals.assaf.org.za:article/2533
2019-02-28T08:46:45Z
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"170601 2017 eng "
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The Doctrine of Quasi-Mutual Assent - Has it become the General Rule for the Formation of Contracts? The Case of Pillay v Shaik 2009 4 SA 74 (SCA)
Thejane, Puseletso Rankoane
University of Witwatersrand
The doctrine of quasi-mutual assent is undoubtedly part of our South African law and has been affirmed and applied in a number of leading decisions. The purpose of this note is to offer a critical analysis of the application of the doctrine in the case of Pillay v Shaik 2009 4 SA 74 (SCA). It is argued that the primary basis of contractual liability in South Africa has always been and still remains consensus ad idem as determined in terms of the rules relating to offer and acceptance It is also argued that the doctrine is not an answer to failure by the parties to comply with self-imposed formalities and/or the prescribed manner of acceptance of an offer for the valid formation of contracts. Based on the aim of the incorporation of the doctrine in our law, coupled with its application in previous court decisions, it is concluded that its application in the case of Pillay v Shaik was wrong and sets a bad precedent.
Faculty of Law, North-West University, South Africa
2012-12-21 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/2533
Potchefstroom Electronic Law Journal; Vol. 15 No. 5 (2012)
eng
Copyright (c) 2017 Puseletso Rankoane Thejane
oai:journals.assaf.org.za:article/2534
2019-02-28T08:46:45Z
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"170601 2017 eng "
1727-3781
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Maccsand (Pty) Ltd v City of Cape Town 2012 (4) SA 181 (CC)
Olivier, Nic
University of Pretoria https://orcid.org/0000-0003-3643-863X
Williams, Clara
University of Pretoria https://orcid.org/0000-0003-1292-6313
Badenhorst, Pieter
Deakin University
The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority.
Faculty of Law, North-West University, South Africa
2012-12-21 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/2534
Potchefstroom Electronic Law Journal; Vol. 15 No. 5 (2012)
eng
Copyright (c) 2017 Nic Olivier, Clara Williams, Pieter Badenhorst
oai:journals.assaf.org.za:article/2535
2019-02-28T08:46:45Z
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"170601 2017 eng "
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Mootness and the Approach to Costs Awards in Constitutional Litigation: A Review of Christian Roberts V Minister of Social Development Case No 32838/05 (2010) (TPD)
Heleba, Siyambonga
University of Johannesburg
After nearly three years of waiting, the North Gauteng High Court (then the Pretoria High Court) finally handed down judgment in March 2010 in the case of Christian Roberts v Minister of Social Development.[1] The case was a constitutional challenge to section 10 of the Social Assistance Act 13 of 2004 and the relevant Regulations, which set the age for accessing an old age grant at 60 for women and 65 for men. After the hearing the High Court had reserved judgment. Pending judgment the government had amended the legislation in dispute so that the pensionable age for the purposes of accessing a social grant would be equalised over time. Despite the change in legislation, the High Court found against the applicants and punished them with a costs order.
* Siyambonga Heleba. LLB (UWC), LLM (UU), Adv Cert (AAU) Dip (UJ). Lecturer, Faculty of Law, University of Johannesburg. Email: scheleba@uj.ac.za. This case note is based on a the paper presented at the Law Teachers Conference on 18 January 2011, at the University of Stellenbosch. The author is indebted to the two anonymous referees for their valuable comments on an earlier draft of this note. All mistakes are mine.
[1] Christian Roberts v Minister of Social Development Unreported Case No 32838/05 (2010) (TPD). The author attended the two-day hearing of the case in September 2007, in his capacity as a researcher at the Community Law Centre, of the University of the Western Cape, and an amicus in the case.
Faculty of Law, North-West University, South Africa
2012-12-21 00:00:00
Peer-reviewed article
application/pdf
application/xml
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https://perjournal.co.za/article/view/2535
Potchefstroom Electronic Law Journal; Vol. 15 No. 5 (2012)
eng
Copyright (c) 2017 Siyambonga Heleba
oai:journals.assaf.org.za:article/2536
2019-02-28T08:46:45Z
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"170601 2017 eng "
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Mora Debitoris and the Principle of Strict Liability: Scoin Trading (Pty) Ltd v Bernstein 2011 2 Sa 118 (SCA)
Cornelius, Steve J
University of Pretoria
Parties generally enter into contractual relations with the sincere intention to fulfil all the obligations created in terms of their contract. However, for various reasons, parties sometimes do not comply with the terms of their contract. Where a party fails to perform at the agreed date and time or after receiving a demand from the creditor, the debtor commits breach of contract in the form of mora debitoris.[1] The question then arises whether or not a debtor would also commit breach in the form of mora debitoris if the delay in performance cannot be attributed to wilful disregard of the contract or a negligent failure to perform on time. This was the question which the court had to determine in Scoin Trading (Pty) Ltd v Bernstein.[2]
[1] Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1; West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173; Fluxman v Brittain 1941 AD 273; Microuticos v Swart 1949 3 SA 715 (A); Linton v Corser 1952 3 SA 685 (A); Union Government v Jackson 1956 2 SA 398 (A); Standard Finance Corporation of South Africa Ltd v Langeberg Ko-operasie Bpk 1967 4 SA 686 (A); Nel v Cloete 1972 2 SA 150 (A); Van der Merwe v Reynolds 1972 3 SA 740 (A); Ver Elst v Sabena Belgian World Airlines 1983 3 SA 637 (A); Chrysafis v Katsapas 1988 4 SA 818 (A).
[2] Scoin Trading (Pty) Ltd v Bernstein 2011 2 SA 118 (SCA).
Faculty of Law, North-West University, South Africa
2012-12-21 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/2536
Potchefstroom Electronic Law Journal; Vol. 15 No. 5 (2012)
eng
Copyright (c) 2017 Steve J CorneliusBaotlwaeng
oai:journals.assaf.org.za:article/2622
2019-10-22T07:08:51Z
per:CN
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"170609 2017 eng "
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Third Party Fraud inducing Material Mistake Slip Knot Investments 777 (Pty) Ltd v du Toit 2011 4 SA 72 (SCA)
Pretorius, Chris James
University of South Africa
In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of iustus error raised by the mistaken party. The position prior to this decision was uncertain and characterised by inconsistency, mostly occasioned by the application of the iustus error doctrine together with fault. The Supreme Court of Appeal found that in the circumstances the mistaken party was liable, despite the fraud of the third party, on the basis of the reliance theory. The decision is commendable for bringing a measure of certainty to the law of mistake on this point and indicating that the reliance theory (as opposed to the iustus error doctrine) is the appropriate means to resolving such cases. Nevertheless, it is suggested that although the general rule implied by the court's approach is entirely apposite, there may well be exceptional instances where on the basis of relevant policy considerations the reliance theory should not prevail and the mistaken party should be absolved from contractual liability. In this manner reliance, which at first seems reasonable for being induced by the conduct of the contract denier, may upon further reflection be regarded as unreasonable based on the consideration of risk creation at the hand of the contract assertor, for instance. Admitting exceptions in appropriate circumstances would also provide a degree of consonance with earlier case law, where, even if the court's approach was open to theoretical criticism, a court has intuitively felt that liability should not lie.
Faculty of Law, North-West University, South Africa
2011-12-14 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/2622
Potchefstroom Electronic Law Journal; Vol. 14 No. 7 (2011)
eng
Copyright (c) 2017 Chris James Pretorius
oai:journals.assaf.org.za:article/2623
2019-10-22T07:16:17Z
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"170609 2017 eng "
1727-3781
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Unauthorised adaptation of computer programmes - is criminalisation a solution? Haupt T/A Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA)
Muswaka, Linda
North West University(mafikeng Camus) https://orcid.org/0000-0001-9557-7002
In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA) Haupt sought to enforce a copyright claim in the Data Explorer computer programme against Brewers Marketing Intelligence (Pty) Ltd. His claim was dismissed in the High Court and he appealed to the Supreme Court of Appeal. The Court held that copyright in the Data Explorer programme vested in Haupt. Haupt acquired copyright in the Data Explorer programme regardless of the fact that the programme was as a result of an unauthorised adaptation of the Project AMPS programme which belonged to Brewers Marketing Intelligence (Pty) Ltd.
This case note inter alia analyses the possibility of an author being sued for infringement even though he has acquired copyright in a work that he created by making unauthorised adaptations to another's copyright material. Furthermore, it examines whether or not the law adequately protects copyright owners in situations where infringement takes the form of unauthorised adaptations of computer programmes. It is argued that the protection afforded by the Copyright Act 98 of 1978 (Copyright Act) in terms of section 27(1) to copyright owners of computer programmes is narrowly defined. It excludes from its ambit of criminal liability the act of making unauthorised adaptation of computer programmes. The issue that is considered is therefore whether or not the unauthorised adaptation of computer programmes should attract a criminal sanction. In addressing this issue and with the aim of making recommendations, the legal position in the United Kingdom (UK) is analysed. From the analysis it is recommended that the Copyright Act be amended by the insertion of a new section, section 27(1)(A), which will make the act of making an unauthorised adaptation of a computer programme an offence. This recommended section will close the gap that currently exists in our law with regard to unauthorised adaptations of computer programmes.
Faculty of Law, North-West University, South Africa
2011-12-14 00:00:00
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/2623
Potchefstroom Electronic Law Journal; Vol. 14 No. 7 (2011)
eng
Copyright (c) 2017 Linda Muswaka
oai:journals.assaf.org.za:article/2624
2019-10-22T07:20:28Z
per:CN
driver
"170609 2017 eng "
1727-3781
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Justice delayed is justice denied: Protecting Miners against Occupational injuries and diseases: Comments on Mankayi v Anglogold Ashanti Ltd 2011 32 ILJ 545 (CC)
Tshoose, CIarence
University of South africa
In the Mankayai v Anglogold Ashant Ltd 2011 32 ILJ 545 (CC) the Constitutional Court was called upon to give meaning and content by interpreting the provision of section 35 of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and section 100(2) of the Occupational Diseases in Mines and Works Act 78 of 1973. The Court had to determine if the employee common-law right of recourse against his employer in cases where he sustained occupational diseases is extinguished by virtue of section 35(1) of COIDA. The purpose of this case note is twofold: firstly, it analyses the decision of the Constitutional Court in the Mankayi case; secondly, the case note looks at the significance of the Mankayi case for the system of occupational health and safety in South Africa. In conclusion, the contribution explores the need for the introduction of a unified system which will address issues of occupational health and safety in a coordinated and unified manner.
Faculty of Law, North-West University, South Africa
2011-12-14 00:00:00
Peer-reviewed article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/2624
Potchefstroom Electronic Law Journal; Vol. 14 No. 7 (2011)
eng
Copyright (c) 2017 CIarence Tshoose
oai:journals.assaf.org.za:article/2781
2019-04-17T09:38:18Z
per:CN
driver
"180126 2018 eng "
1727-3781
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Maintaining the Ecological Flows of Estuaries: A Critical Reflection on the Application and Interpretation of the Relevant Legal Framework through the Lens of the Klein River Estuary
Paterson, Alexander Ross
Institute of Marine and Environmental LawFaculty of LawUniversity of Cape Town
South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country’s estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is however contingent upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary, and what one recent decision of the Supreme Court of Appeal in Abbott v Overstrand Municipality (2016) clearly illustrates is that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary’s understanding and application thereof. It furthermore illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire.
Faculty of Law, North-West University, South Africa
2018-01-15 10:37:20
Peer-reviewed article
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https://perjournal.co.za/article/view/2781
Potchefstroom Electronic Law Journal; Vol. 21 (2018)
eng
Copyright (c) 2018 Alexander Ross Paterson
oai:journals.assaf.org.za:article/3285
2019-10-18T06:10:36Z
per:CN
driver
"190423 2019 eng "
1727-3781
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Standing on Unsteady Ground: AREVA NP Incorporated in France v Eskom SOC LTD
van Eetveldt, Henri-Willem
Stellenbosch University https://orcid.org/0000-0002-6890-7368
Areva NP Incorporated in France v Eskom Holdings SOC Ltd 2017 6 BCLR 675 (CC) was a dispute over a multi-billion-rand tender. Although the majority of the Constitutional Court recognised the public importance of the case, it adjudicated the dispute entirely on a preliminary point. It found that the applicant did not have legal standing to seek the judicial review of the award of the tender.
This case note has three aims. First, I will argue that the Constitutional Court's majority judgment in Areva was generally unpersuasive. Second, I will attempt to show that Areva exposes an unresolved legal question: when should a court consider the merits of a case made by a litigant with questionable standing? Third, I will propose a method for resolving this question by way of substantive judicial reasoning in any given case.
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/3285
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Henri-Willem van Eetveldt
oai:journals.assaf.org.za:article/3293
2019-10-18T06:07:41Z
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driver
"180827 2018 eng "
1727-3781
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The Constitutionalisation of the Test for Statutory Illegality in South African Contract Law: Cool Ideas v Hubbard 2014 4 SA 474 (CC)
Golela, Odwa
This paper investigates the constitutionalisation of the test for statutory illegality (the test) in South African contract law, firstly through a careful evaluation of the manner in which the Constitutional Court (CC) applied the test in Cool Ideas v Hubbard, secondly through the manner in which the CC purports to constitutionalise the test in the said case, and thirdly through asking if such a method is desirable in the constitutional dispensation. It can be conceded that the approach taken by the main judgment to the application of the test in this case is more compelling than that taken by Froneman J. However, the fundamental differences in these approaches, particularly in the determination of the impact of the Constitution and its underlying values, highlight the need for an investigation into the test and the way it should operate in the constitutional dispensation. The paper begins by setting out the test and shows that it is capable of reflecting the values that underlie the Constitution (while maintaining a workable level of legal certainty) and that the test can operate in a manner that enhances the vision and goals of the Constitution. It also proposes a framework within which the various factors of the test should be weighed up, with a view to determining whether the contract under investigation is valid or invalid. Then the paper evaluates the CC's application of the test. It criticises the main judgment for its incomplete undertaking of the enquiry envisaged in sections 8(1) and (2) of the Constitution, as it took into account neither the "spirit, purport and objects" underpinning section 25(1), nor the fundamental values of the Constitution. It also criticises Froneman J's judgment for not connecting the value of fairness with the "spirit, purport and objects" underpinning section 25(1) or the broader fundamental values of the Constitution. Thereafter, it considers the manner in which the CC purports to constitutionalise the test. It points out that equity considerations apply in all matters, whether a substantive right is implicated or not, as they ensure that the "application" and "interpretation" of a statute enhance and are in line with the "objective normative value system" that is the Bill of Rights. Lastly, it considers the desirability of the CC's approach to the application of the test and its constitutionalisation. It points out that the main judgment goes to the extremes of objectivity in interpreting the relevant provisions of the Housing Consumers Protection Measures Act, 1998 (within the application of the test), while Froneman J goes to the extremes of subjectivity. In this regard, it suggests that courts can use the "balance of convenience" test to adjust their decisions to accommodate the circumstances of each case. Therefore, it concludes that the approach to constitutionalising the test lies somewhere between that of the main judgment and that of Froneman J
Faculty of Law, North-West University, South Africa
2018-01-15 10:37:20
Peer-reviewed article
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https://perjournal.co.za/article/view/3293
Potchefstroom Electronic Law Journal; Vol. 21 (2018)
eng
Copyright (c) 2018 Odwa Golela
oai:journals.assaf.org.za:article/3371
2019-04-17T09:26:51Z
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"180627 2018 eng "
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Some Drastic Measures to Close a Loophole: The Case of Pienaar Brothers (PTY) LTD v Commissioner for the South African Revenue Service (87760/2014) [2017] ZAGPPHC 231 (29 May 2017) and the Targeted Retroactive Amendment of Section 44 of the Income Tax
Tredoux, Liezel Gaynor
Department of Mercantile LawUniversity of South Africa https://orcid.org/0000-0002-1292-728X
Van Zyl, Stephanus Phillipus
Department of Mercantile Law, University of South Africa https://orcid.org/0000-0002-8512-7734
A taxpayer has the right to arrange his tax affairs within the constraints of the law to his best advantage to pay the least amount of tax. Coupled with this right is the taxpayer's right to certainty, which entails that the time of payment of taxes, the manner of payment, and the amount of payment must be clear and plain to the taxpayer and to any other person. Accordingly, a taxpayer must have peace of mind that revenue laws will not be amended arbitrarily, retrospectively, and with the effect that the taxpayer's position is affected negatively. The South African tax legislation allows the deferral of tax liability when amalgamation transactions, asset for share transactions, and mergers and acquisitions are embarked upon by a taxpayer. This article analyses the judgment in Pienaar v Commissioner: South African Revenue Services (87760/2014) [2017] ZAGPPHC 231 (29 May 2017) critically with specific reference to amalgamation transactions, the taxpayer's right to tax certainty, and the application of retroactive amendments to completed transactions
Faculty of Law, North-West University, South Africa
2018-01-15 10:37:20
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/3371
Potchefstroom Electronic Law Journal; Vol. 21 (2018)
eng
Copyright (c) 2018 Stephanus Phillipus Van Zyl, Liezel Gaynor Tredoux
oai:journals.assaf.org.za:article/4172
2019-04-23T09:38:44Z
per:CN
driver
"171205 2017 eng "
1727-3781
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Equal Pay in Terms of the Employment Equity Act: The Role of Seniority, Collective Agreements and Good Industrial Relations: Pioneer Foods (Pty) Ltd v Workers against Regression 2016 ZALCCT 14
Ebrahim, Shamier
University of South Africa
Equal pay for equal work and work of equal value is recognised as a human right in international law. South Africa has introduced a specific provision in the EEA in the form of section 6(4) which sets out the causes of action in respect of equal pay claims. The causes of action are: (a) equal pay for the same work; (b) equal pay for substantially the same work; and (c) equal pay for work of equal value. In addition to the introduction of section 6(4) to the EEA, the Minister of Labour has published the Employment Equity Regulations of 2014 and a Code of Good Practice on Equal Pay for work of Equal Value. This constitutes the equal pay legal framework in terms of the EEA.
The Regulations sets out the factors which should be used to evaluate whether two different jobs are of equal value. It further provides for the methodology which must be used to determine an equal pay dispute and it sets out factors which would justify a differentiation in pay. The Code provides practical guidance to both employers and employees regarding the application of the principle of equal pay for work of equal value in the workplace, inter alia.
Regulation 7 sets out factors which would justify pay differentiation. These factors are: (a) seniority (length of service); (b) qualifications, ability and competence; (c) performance (quality of work); (d) where an employee is demoted as a result of organisational restructuring (or any other legitimate reason) without a reduction in pay and his salary remains the same until the remuneration of his co-employees in the same job category reaches his level (red-circling); (e) where a person is employed temporarily for the purpose of gaining experience (training) and as a result thereof receives different remuneration; (f) skills scarcity; and (g) any other relevant factor. If a difference in pay is based on any one or more of the above factors then it is not unfair discrimination if it is fair and rational. This is spelt out in regulation 7(1).
In Pioneer Foods (Pty) Ltd v Workers Against Regression 2016 ZALCCT 14 the seniority (length of service) factor was at the fore in the Labour Court. The Labour Court, on appeal, reversed an arbitration award in which the Commissioner found that paying newly appointed drivers at an 80% rate for the first two years of employment as opposed to the 100% rate paid to drivers working longer than two years in terms of a collective agreement amounted to unfair discrimination in pay. The CCMA, in essence, regarded the factor of seniority as a ground of discrimination as opposed to a ground justifying pay differentiation.
Pioneer Foods is noteworthy as it is one of the first reported cases from the Labour Court dealing with the relatively new equal pay legal framework. It raises the following important equal pay issues: (a) is seniority a ground of discrimination or a ground justifying pay differentiation? And (b) what is the role of a collective agreement and good industrial relations when determining an equal pay claim? The purpose of this note is to critically analyse these issues and guidance will be sought from South African Law, Foreign law and relevant ILO materials in this regard.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/4172
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Shamier Ebrahim
oai:journals.assaf.org.za:article/4174
2019-04-23T09:46:25Z
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"171218 2017 eng "
1727-3781
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A Fresh Perspective on Historical Sexual Abuse: The Case of Hewitt v S 2017 1 SACR 309 (SCA)
Nortje, Windell
University of the Western Cape https://orcid.org/0000-0001-8033-5537
Du Toit, Pieter
North West University, Potchefstroom Campus
Sexual crimes continues to be a scourge in our society. It is therefore not surprising that the prevention and criminalisation of sexual crimes in South Africa has received a large amount of attention over the last few years. Contrarily, the matter of historical sexual abuse has received only occasional consideration. Cases of historical sexual abuse present numerous challenges to all parties involved. The victims of historical sexual abuse, often children at the time, are now adults. Some of these victims might not want to relive the experience or confront the offender. On the other hand, the offender might have been rehabilitated and become a respected citizen. In Hewitt v S 2017 1 SACR 309 (SCA) the Supreme Court of Appeal heard the appeal against the sentence of Bob Hewitt, a retired tennis champion. He was convicted of committing numerous sexual offences against young girls. The first of these crimes was committed more than three decades ago. This case note analyses the decision by the SCA while it also examines historical sexual abuse more generally in South Africa as well as in England and Wales, in order to establish whether any lessons can be learned from previous cases and laws as implemented in these countries.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
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text/html
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https://perjournal.co.za/article/view/4174
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Windell Nortje, Pieter Du Toit
oai:journals.assaf.org.za:article/4177
2019-04-23T09:47:54Z
per:CN
driver
"171218 2017 eng "
1727-3781
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Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville
Tsele, Michael
When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/4177
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Michael Tsele
oai:journals.assaf.org.za:article/4180
2019-04-23T09:55:09Z
per:CN
driver
"171218 2017 eng "
1727-3781
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The Role of the Labour Court in Collective Bargaining: Altering the Protected Status of Strikes on Grounds of Violence in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd (2016) 37 ILJ 476 (LC)
Van Eck, Stefan
University of Pretoria https://orcid.org/0000-0002-1563-6736
Kujinga, Tungamirai
University of Pretoria
This note explores the powers of the Labour Court as envisaged in the Labour Relations Act 66 of 1995 (LRA), where a protected strike disintegrates into violent riotous conduct. The legal status of protected strikes raises important questions of law, namely: whether the Labour Court has the authority to alter the legal status of a strike; the autonomy of collective bargaining; and the legal test which the Labour Court should apply when intervening. The court in National Union of Food Beverage Wine Spirits & Allied Workers v Universal Product Network (Pty) Ltd 2016 37 ILJ 476 (LC) dealt with this precise problem. There can be no doubt that South Africa is plagued by widespread strike violence which often occur during protected strikes. However, this contribution poses the question whether the Labour Court has not overstepped its mandated jurisdiction and it questions whether such alterations of the status of strikes would have a positive effect on the institution of collective bargaining.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/4180
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Stefan Van Ecka
oai:journals.assaf.org.za:article/4186
2020-11-11T05:37:44Z
per:CN
driver
"170103 2017 eng "
1727-3781
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Should the Alienation of Land Act 68 of 1981 be Amended to Address Homelessness? Sarrahwitz v Maritz 2015 8 BCLR 925 (CC)
Heyns, Anri
University of South Africa
Mmusinyane, Boitumelo
University of South Africa http://www.unisa.ac.za/default.asp?Cmd=ViewContent&ContentID=20231 https://orcid.org/0000-0001-9397-3159
The article critically evaluates the decision of the Constitutional Court to resort to the amendment of the Alienation of Land Act in order to protect a vulnerable purchaser of property against homelessness. It is argued that the origins and purpose of the said Act should have been considered by the Constitutional Court. Such consideration shows that the Act protects against a specific vulnerability which an instalment sale purchaser faces and deals with the right to take transfer. This vulnerability is not necessarily homelessness and is it, therefore, questioned whether the Act can be applied to give effect to the section 26 of the Constitution. The article further argues that an alternative solution could have been to develop, in line with constitutional values, the common law provision which provides the trustee of the insolvent estate with the discretion to cancel a sale agreement pertaining to property sold but not yet transferred, as it is this provision which created the risk of homelessness in this instance. It is, however, submitted, that the minority judgment’s reliance on the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, provided the best solution in this instance.
Faculty of Law, North-West University, South Africa
2017-01-03 00:00:00
Peer-reviewed article
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https://perjournal.co.za/article/view/4186
Potchefstroom Electronic Law Journal; Vol. 20 (2017)
eng
Copyright (c) 2017 Anri Heyns, Boitumelo Mmusinyane
oai:journals.assaf.org.za:article/4220
2019-04-17T09:25:47Z
per:CN
driver
"180523 2018 eng "
1727-3781
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Disposing of Bodies, Semantically: Notes on the Meaning of "Disposal" in S v Molefe
Carney, Terrence R
https://orcid.org/0000-0001-8922-5668
In S v Molefe the presiding officer determines the meaning of the word "disposal" at the hand of two criteria, namely (1) visibility and (2) permanence; this means a body has to be permanently out of sight to be considered disposed of. He applies these two criteria in order to conclude if the accused is guilty of concealing the birth of her child by disposing of its body. In doing so, the court no longer interprets the word as an everyday word but turns it into a legal term. This note questions the linguistic soundness of the criteria by investigating how language structures space, and how these constructions relate to the word "disposal". In order to scrutinise the criteria, a text analysis was carried out by applying Talmy's ideas surrounding prepositions in structuring space and movement. Connected to this is the semantic difference between the words "seeing" and "looking": seeing is a sensory act, whereas looking is a cognitive one. In keeping with the contested word's status as a legal term, the difference between seeing and looking aids in formulating two new criteria. Courts may consider assessing whether disposal took place on the grounds of (a) containment and (b) movement; for instance, has the body been moved from one location to another and is the body being contained within another object like a bucket, a wooden box or a suitcase?
Faculty of Law, North-West University, South Africa
2018-01-15 10:37:20
Peer-reviewed article
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https://perjournal.co.za/article/view/4220
Potchefstroom Electronic Law Journal; Vol. 21 (2018)
eng
Copyright (c) 2018 Terrence R Carney
oai:journals.assaf.org.za:article/4303
2019-10-18T06:07:42Z
per:CN
driver
"180809 2018 eng "
1727-3781
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Sounding the Alarm: Government of the Republic of Namibia v LM and Women's Rights during Childbirth in South Africa
Pickles, Camilla Marion Sperling
Constitutional Court
Government of the Republic of Namibia v LM [2014] NASC 19 (hereafter the LM case) concerns the involuntary sterilisation of women during childbirth. The Supreme Court of Namibia found that obtaining consent during the height of labour is inappropriate because labouring women lack the capacity to consent because of the intensity of their labour pains. This article recognises that the LM case may make its way into current litigation strategies against involuntary sterilisations in South Africa and for this reason I evaluate the soundness of the court's reasoning in the LM case. I argue that the court relied on the harmful gender stereotype that labouring women lack the capacity to make decisions, I expose this stereotype as baseless and demonstrate the harmful consequences of its perpetuation. Finally, I demonstrate why the reasoning in the LM case is particularly problematic in the South African context, and I conclude that the adoption of this sort of reasoning will result in many women facing serious injustices, because it strikes at the core of a woman's agency during childbirth.
Faculty of Law, North-West University, South Africa
2018-01-15 10:37:20
Peer-reviewed article
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https://perjournal.co.za/article/view/4303
Potchefstroom Electronic Law Journal; Vol. 21 (2018)
eng
Copyright (c) 2018 Camilla Marion Sperling Pickles
oai:journals.assaf.org.za:article/4401
2019-10-18T06:10:59Z
per:CN
driver
"190131 2019 eng "
1727-3781
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The Appointment of a Proxy "At Any Time" in Terms of Section 58 of the Companies Act 71 of 2008: Richard Du Plessis Barry v Clearwater Estates NPC [2017] ZASCA 11
Madlela, Vela
University of South Africa https://orcid.org/0000-0001-7223-5077
Section 58(1) of the Companies Act 71 of 2008 gives a shareholder the right to appoint a proxy "at any time" for the purpose of participating in, speaking and voting on behalf of that shareholder at a shareholders′ meeting, or providing or withholding written consent on behalf of the shareholder in terms of section 60. One important issue that arises in regard to the appointment of a proxy relates to the proper interpretation of section 58(1) of the Companies Act 71 of 2008, namely whether this section, as read with section 58(3)(c), constitutes an unalterable provision giving a shareholder an unlimited right to appoint a proxy "at any time" before the proxy exercises the shareholder's rights at the shareholders meeting, or whether the time period within which the instrument of a proxy′s appointment must be delivered to the company may be restricted by the MOI. This issue was considered by the SCA in the Richard Du Plessis Barry case in view of the appellant′s contention that the provisions of the MOI that limited the time period within which the instrument appointing a proxy must be delivered to the company, or other person on behalf of the company, were valid. In this note, I examine the Richard Du Plessis Barry case with a focus on the proper interpretation of the right of a shareholder to appoint a proxy "at any time" as conferred by section 58(1) of the Companies Act 71 of 2008. I provide some critical comments on the main issues that this judgement raises, including the interpretation of section 58(1) in the context of "alterable" and "unalterable" provisions of the Companies Act 71 of 2008, a purposive interpretation of section 58(1), the interaction between section 58(1) and section 58(3)(c), the significance of the difference in the wording of section 58(1) of the Companies Act 71 of 2008 and section 189 of the previous Companies Act 61 of 1973, as well as the practical implications of the court's decision in this matter. This is followed by a brief comparative analysis with selected international jurisdictions and some concluding remarks.
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
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https://perjournal.co.za/article/view/4401
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Vela Madlela
oai:journals.assaf.org.za:article/5169
2019-10-18T06:10:57Z
per:CN
driver
"190205 2019 eng "
1727-3781
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Sexual Harassment: Why do Victims so often Resign? E v Ikwezi Municipality 2016 37 ILJ 1799 (ECG)
Calitz, Karin
Stellenbosch University https://orcid.org/0000-0003-4292-0094
This article endeavours to find answers to the question of why the victims of sexual harassment often resign after the harassment, while the perpetrator continues working, and suggests how some of the human cost to victims of sexual harassment can be prevented. E v Ikwezi Municipality provides a classic example of how the failure of the employer to protect the victim exacerbated her suffering from Post-Traumatic Stress Disorder (PTSD), eventually leaving her with no option but to resign. Had the employer conducted a risk analysis, it could have prevented the sexual harassment by alerting employees to the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace. Further, had the employer been aware that it was responsible for the victim's psychological safety also after the disciplinary hearing, it could have taken measures to ensure her safety. The unsatisfactory sanction (the harasser was not dismissed) could lastly have been referred to the Labour Court for review. Unfortunately, the wrong legal advice and an incompetent chairperson led to the municipality’s failing adequately to protect the victim. This caused (and aggravated) the symptoms of PTSD, which forced the victim to resign.
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/5169
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Karin Calitz
oai:journals.assaf.org.za:article/5190
2019-10-18T06:09:23Z
per:CN
driver
"190425 2019 eng "
1727-3781
dc
Introducing a Serpent into the Garden of Collective Bargaining: A Case Analysis of Numsa Obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017)
Rwodzi, Night Tafadzwa
student https://orcid.org/0000-0001-7440-9579
Lubisi, Nombulelo
https://orcid.org/0000-0002-4073-9518
This case note is an analysis of Numsa obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017). The jurisprudence advanced in this case is pertinent to balancing the employer and employee’s rights in the context of collective bargaining. The worker’s right to strike is one of the rights entrenched in the South African constitution. In addition, this right to strike should not be directly or indirectly undermined without a just cause. The preamble of the South African Constitution seeks to redress the unjust laws of the past including those in the employment arena. Furthermore, unfair discrimination is also one of the prohibited practices which are sanctioned not only domestically but internationally as well in terms of the International Labour Conventions. This note contributes to the existing literature of labour law by critically analysing the decision reached by Tlhotlhalemaje J.
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
application/pdf
text/html
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https://perjournal.co.za/article/view/5190
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Night Tafadzwa Rwodzi, Nombulelo Lubisi
oai:journals.assaf.org.za:article/5308
2019-12-12T09:44:54Z
per:CN
driver
"191025 2019 eng "
1727-3781
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The "Necessity Test" as Expressed by the Enigmatic Article XX(j) of the General Agreement on Tariffs and Trade (1994): Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules
Vinti, Clive
The University of the Free State https://orcid.org/0000-0002-3823-2400
The General Agreement on Tariffs and Trade (1994) (GATT) is premised on the elimination of all barriers to trade in goods. Contrary to this approach, Article XX of the GATT authorises the circumvention of this imperative. More specifically, Article XX(j) of the GATT essentially provides that GATT contracting parties are authorised to promulgate measures that are "essential" to the acquisition of products in general or local short supply. This invariably means that only measures that are "essential" will satisfy the "necessity test" contemplated under Article XX(j). The Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules is the first World Trade Organisation case to elaborate on the "necessity test" of Article XX(j) of the GATT. This paper seeks to evaluate the Appellate Body's findings on the "necessity test" of Article XX(j).
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/5308
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Clive Vinti
oai:journals.assaf.org.za:article/5397
2020-01-08T08:05:31Z
per:CN
driver
"190415 2019 eng "
1727-3781
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Are Close of Pleadings now Irrelevant? An Evaluation of the Impact the Nkala Judgment has on Litis Contestatio
Khan, Muhammed Siraaj
North West University (Potchefstroom) https://orcid.org/0000-0002-4270-8264
The position regulating close of pleadings in South African law of civil procedure has for a long time been unchallenged. However, the court in Nkala v Harmony Gold Mining Company Limited 2016 5 SA 240 (GJ) developed the common law to allow for the transmissibility of claims for general damages to the deceased's estate even if pleadings have not reached the stage of litis contestatio. The argument is that while the need for the development for the common law is recognised, the minority opinion should be the preferred approach. The majority held that the common law should be developed to allow all claims for general damages to be transmissible to the deceased's estate even if the stage of litis contestatio has not been reached. This note posits that the points raised by the minority opinion are of sufficient magnitude to prevent the immediate wholesale development of the common law. Detailed legal argument specifically addressing the development of the common law as a whole in this context, as well as the knock-on effects of the same were not ventilated, and as such the majority judgment can be viewed as premature. The paper provides an analytical and critical view of the judgment.
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/5397
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Muhammed Siraaj Khan
oai:journals.assaf.org.za:article/5937
2019-12-13T08:45:38Z
per:CN
driver
"191210 2019 eng "
1727-3781
dc
Gongqose v Minister of Agriculture, Forestry and Fisheries – A Tale of Customary Rituals and Practices in Marine Protected Areas
Monyamane, Lesetja
University of Limpopo https://orcid.org/0000-0003-0999-9909
Bapela, Mpho Paulos
University of Limpopo https://orcid.org/0000-0001-8227-8708
The correct application of customary law post constitutionalism continues to be the subject of much judicial and academic deliberation. This is especially true where the existence and/or scope of customary rights and cultural practices are not well defined in a specific case. Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfect example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law. The case grapples with the meeting point of customary rights and customs and the need to preserve the environment. This intersection is considered in view of earth jurisprudence as an emerging legal thought topic in environmental law. On the whole, the decision of the SCA demonstrates encouraging signs of an appreciation of customary law as deserving of an equal place on the legal podium.\
Faculty of Law, North-West University, South Africa
2019-01-31 05:39:13
Peer-reviewed article
application/pdf
text/html
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https://perjournal.co.za/article/view/5937
Potchefstroom Electronic Law Journal; Vol. 22 (2019)
eng
Copyright (c) 2019 Lesetja Monyamane, Mpho Paulos Bapela
oai:journals.assaf.org.za:article/6022
2020-07-29T10:53:19Z
per:CN
driver
"200505 2020 eng "
1727-3781
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Legal Standing of Victims in Criminal Proceedings: Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC)
Mhlongo, Lindelwa Beaulender
Unisa,Collage of Law https://orcid.org/0000-0002-6051-8480
Dube, Buhle Angelo
Unisa,Collage of Law https://www.unisa.ac.za/sites/corporate/default/Colleges/Law/Schools,-departments,-centres-&-institute/School-of-Law/Department-of-Public,-Constitutional-and-International%C2%A0Law/Staff-members/Prof-A-Dube https://orcid.org/0000-0001-6959-2401
In late 2016, the Constitutional Court delivered judgment in a case, Wickham v Magistrate, Stellenbosch 2017 1 BCLR 121 (CC), involving Wayne Anthony Wickham (an aggrieved father and applicant in this case), who appealed against the decision of the Magistrate's Court in which he was denied the opportunity to hand up a victim impact statement. The thrust of his application was that his rights, as a victim of the crime in which his son was negligently killed by the fourth respondent, had been violated, and that this raised an arguable point of law of general public importance. The respondents, however, argued that the applicant lacked standing as the dominus litis in culpable homicide cases is the public prosecutor, and not the relatives of the deceased, or the victim. The case turned on whether the exercise of discretion by the Magistrate in denying Wickham the right to be heard was performed correctly; and whether a non-party to criminal proceedings could make an application for the review of the Magistrate's conduct. The article seeks to interrogate the rights of victims in criminal proceedings and aptly poses the following question: Do victims of crimes have a locus standi to be part of criminal proceedings?
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
application/pdf
text/html
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https://perjournal.co.za/article/view/6022
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Lindelwa Beaulender Mhlongo, Buhle Angelo Dube
oai:journals.assaf.org.za:article/6249
2020-07-29T09:33:31Z
per:CN
driver
"200417 2020 eng "
1727-3781
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The Powers of the Office of the Public Protector and the South African Human Rights Commission: A Critical Analysis of SABC v DA and EFF v Speaker of the National Assembly 2016 3 SA 580 (CC)
Govender, Karthy
South African Law Reform Commission https://orcid.org/0000-0001-7707-6255
Swanepoel, Paul
University of KwaZulu-Natal https://orcid.org/0000-0002-7350-9305
This article assesses South African Broadcasting Corporation v Democratic Alliance 2016 2 SA 522 (SCA) and Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC) and to a lesser extent the state of capture judgments. All of these deal with whether the findings and remedial action of the Public Protector (PP) are binding in certain circumstances. The judgments significantly change the impact and effect of findings made by the Office of the Public Protector (OPP) and have important consequences and lessons for other Chapter 9 institutions. It is apparent from these judgments that there was a concerted attempt to undermine the OPP by systematically disrespecting and not implementing the remedial action. It is argued in the article that egregious violations by public officials contributed to the courts' rulings that the findings of the PP may be binding. The article also explicitly records the unlawful conduct of public officials and the resultant cost and consequence in the hope that conduct of this nature is not repeated. It also specifically notes that the major findings in the Nkandla, SABC and State of Capture reports have withstood judicial scrutiny. Regrettably, this exalted standard has not always been replicated in the reports of the present PP. Finally, the article submits, on the basis of these judgments that the findings of the South African Human Rights Commission should in certain circumstances be binding.
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/6249
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Karthy Govender, Paul Swanepoel
oai:journals.assaf.org.za:article/6625
2020-07-30T07:46:27Z
per:CN
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"200612 2020 eng "
1727-3781
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Poverty as a Ground of Indirect Discrimination in the Allocation of Police Resources – A Discussion of Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC)
van der Linde, Delano Cole
North-West University https://orcid.org/0000-0003-3347-3077
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) prohibits indirect and direct unfair discrimination in terms of the grounds listed in the act (such as race, sex, and sexual orientation) as well as unlisted grounds (which are to be alleged and proven by an applicant). South African courts had also grappled with the specific issue of indirect unfair discrimination prior to the enactment of PEPUDA, where applicants could rely on the Constitution of the Republic of South Africa, 1996 directly. This is evident in cases such as Pretoria City Council v Walker 1998 2 SA 363 (CC) and S v Jordan 2002 6 SA 642 (CC). This contribution is an analysis of the pioneering judgment in Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC) (SCJ case), wherein a South African court for the first time recognised poverty as a ground of indirect discrimination under PEPUDA. This conclusion flows from the court's finding, based on expert evidence that the formula used to allocate police resources in the Western Cape unfairly discriminates against poor and Black people in an indirect manner. The analysis of the SCJ judgment will take place against the backdrop of the antidiscrimination framework under PEPUDA and direct constitutional litigation that predates PEPUDA. The underlying theme of intersectionality will also be discussed, as it was apparent from a reading of the SCJ case that grounds of discrimination often intersect with one another and disproportionately affect certain groups of people.
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/6625
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Delano Cole van der Linde
oai:journals.assaf.org.za:article/6804
2020-07-29T10:45:32Z
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"200504 2020 eng "
1727-3781
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The Changing Identity on Succession to Chieftaincy in the Institution of Traditional Leadership: Mphephu v Mphephu-Ramabulana (948/17) [2019] ZASCA 58
Ntlama, Nomthandazo
https://orcid.org/0000-0002-1033-689X
The institution of traditional leadership has from time immemorial been central to traditional authority in the system of customary law. After the dawn of democracy in 1994, the role was fundamentally entrenched in the Constitution of the Republic of South Africa, 1996. The entrenchment would seem to entail the development of a new set of norms and a new ethos in customary law in line with the ideals of the new democracy, and the modification of certain aspects of the system. Of great significance for the transformation of the system is the promotion of the right to gender equality with reference to women's succession to the throne. Various commentators argue for this as an attempt to transform the culture of domination entrenched in a patriarchal system that always undermined the rights of women.
Against this background, this article undertakes a comparative analysis of the recent judgments of the Supreme Court of Appeal in Mphephu v Mphephu-Ramabulana 2019 7 BCLR 862 (SCA) and Ludidi v Ludidi 2018 4 All SA 1 (SCA) to determine whether the succession of women to the throne is evidence of the desired transformation of the institution of traditional leadership. The article argues that these judgments have initiated a transformation which has the potential to destroy the identity of the institution of traditional leadership by paving the way for the nomination of women to occupy not just any leadership position in the chieftaincy but the throne itself. It also argues that the interpretation of the right to gender equality through the lens of common law instead of in its own context, which has a communal focus, compromises the transformative or developmental agenda of the institution of traditional leadership as envisaged in the Constitution. The discussion is limited to succession to the "throne" and is not applicable to other leadership positions such as occur in matrilineal systems, or regency and other such traditional leadership roles. This is also not a comparative study that considers other jurisdictions, is further limited to the concept of "gender discrimination", and does not deal with the other technicalities that were raised in these cases.
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
application/pdf
text/plain
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https://perjournal.co.za/article/view/6804
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Nomthandazo Ntlama
oai:journals.assaf.org.za:article/6856
2020-08-05T08:33:33Z
per:CN
driver
"200618 2020 eng "
1727-3781
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Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute
Tlale, Mpho Tsepiso
POST-DOCTORAL RESEARCH FELLOW
The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members.
Nevertheless, the Department of Mineral Resources (DMR) and the mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the communities' consent because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/6856
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 MPHO TSEPISO TLALE
oai:journals.assaf.org.za:article/7145
2020-11-02T13:08:54Z
per:CN
driver
"200604 2020 eng "
1727-3781
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Jurisdictional and Procedural Technicalities i n Hate Speech Cases: South African Human Rights Commission v Khumalo 2019 1 SA 289 (GJ)
Geldenhuys, Judith
UNISA https://orcid.org/0000-0001-9956-7071
Kelly-Louw, Michelle
University of South Africa https://orcid.org/0000-0003-0145-3119
The jurisdiction or competence of the Equality Court to hear a dispute concerning alleged hate speech is affected by various jurisdictional factors. The decision in South African Human Rights Commission v Khumalo 2019 1 All SA 254 (GJ) reveals several shortcomings in the provisions regulating jurisdiction in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 which must be attended to in order to provide clarity and legitimacy in regard to the application of the protection against hate speech.
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
application/pdf
text/plain
application/epub+zip
https://perjournal.co.za/article/view/7145
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Judith Geldenhuys, Michelle Kelly-Louw
oai:journals.assaf.org.za:article/7233
2020-07-29T10:21:30Z
per:CN
driver
"200428 2020 eng "
1727-3781
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Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP): Paving the Way for Formal Protection of Informal Land Rights
Meyer, Yolandi
University of Johannesburg https://orcid.org/0000-0003-2367-6516
In Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) the court, duly following the judicial guidance provided in Maledu v Itereleng Bakgatla Mineral Resources 2019 2 SA 1 (CC), made an important pronouncement on the rights of people who hold informal land tenure. The question in the Baleni judgment concerned the level of consent required to obtain a mining right over property held by a community with informal or customary land tenure. The court specifically considered provisions of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) and the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), and concluded that the provisions of these Acts should be read together when determining the level of consent required. The court found that a community's consent, as required by IPILRA, and not merely consultation with a community, as required by the MPRDA, is necessary before a mining right can be obtained over a community's property. The Baleni and the Maledu judgments set an important judicial precedent protecting informal land owners against the potentially harmful effects of mining activities, and establish a higher standard for obtaining a mining right over such property. However, despite the success of the judgment, many questions remain regarding the longevity of IPILRA, in particular, and a long-term solution to informal land tenure and land security in general. This case note argues that final legislation should be enacted to provide protection for people who hold informal land rights, and consequently to formalise indigenous communities' land rights to ensure that these judgments act as the precursor for fundamental change in the current debate regarding informal land rights.
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
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https://perjournal.co.za/article/view/7233
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Yolandi Meyer
oai:journals.assaf.org.za:article/7449
2020-07-29T10:17:26Z
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driver
"200423 2020 eng "
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'n Leë dop is soms beter as 'n halwe eier / An empty shell is sometimes better than half an egg – Gounden v Master of the High Court [2015] JOL 32896 (KZD) and Govender v Gounden 2019 2 SA 262 (KZN)
Gildenhuys, Anel
Faculty of Law at the North-West University http://orcid.org/0000-0002-3166-6628
The KwaZulu-Natal High Court, Durban, recently had the opportunity to interpret section 15(3)(b)(iii) of the Matrimonial Property Act 88 of 1984 within the context of the South African law of succession. This section states that: "A spouse shall not without the consent of the other spouse … receive any money due or accruing to that other spouse or the joint estate by way of … inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse." The question before the court was whether a person who is married in community of property requires the consent of his or her spouse in order to repudiate an intestate inheritance. The following aspects were considered by both the court a quo (Gounden v Master of the High Court [2015] JOL 32896 (KZD)) as well as the full bench on appeal (Govender v Gounden 2019 2 SA 262 (KZN)): the distinction between dies cedit and dies venit; the importance of this distinction in electing to either adiate or to repudiate an inheritance; and the implications for the joint estate of spouses married in community of property. The purpose of this contribution is to analyse and critically discuss the reasoning in the judgments in relation to these three aspects.
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/7449
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Anel Gildenhuys
oai:journals.assaf.org.za:article/7504
2021-01-21T06:00:13Z
per:CN
driver
"201208 2020 eng "
1727-3781
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Marital Power Finally Obliterated: The History of the Abolition of the Marital Power in Civil Marriages in Eswatini
Mavundla, Simangele D
27(0)744 163031 https://orcid.org/0000-0003-1953-315X
Strode, Ann
https://orcid.org/0000-0001-6354-189X
Dlamini, Dumsani Christopher
https://orcid.org/0000-0002-4350-5741
Women's subordination is not new in the world. As society became human rights conscious, many countries started abrogating or scrapping discriminatory laws and attitudes towards women, in particular married women. However, it has taken Eswatini more than 100 years to deal with the fact that the common law principle of marital power discriminates against women.
This paper traces the reception of marital power into the legal framework of Eswatini and how advocacy groups on women's rights and freedoms have opposed women's subordination, fortified by research. This paper presents a desktop review of selected literature and case laws touching on women's emancipation in Eswatini.
This research work is significant in that it adds to the body of knowledge by recording the origins of women's subjection to marital power and their eventual emancipation in the landmark case of Sacolo v Sacolo (1403/2016) [2019] SZHC 166 (30 August 2019).
Faculty of Law, North-West University, South Africa
2020-01-07 06:56:47
Peer-reviewed article
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https://perjournal.co.za/article/view/7504
Potchefstroom Electronic Law Journal; Vol. 23 (2020)
eng
Copyright (c) 2020 Simangele D Mavundla, Ann Strode, Dumsani Christopher Dlamini
oai:journals.assaf.org.za:article/7973
2021-11-03T13:26:43Z
per:CN
driver
"211103 2021 eng "
1727-3781
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The Employee's Right to Freedom of Religion versus the Employer's Workplace Needs: An Ongoing Battle: TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC)
Ebrahim, Shamier
University of South Africa https://orcid.org/0000-0002-2702-9247
The right to religion is well protected in the Constitution of the Republic of South Africa, 1996 (the Constitution) as well as attendant legislation. Section 15(1) of the Constitution provides that all persons have the right to freedom of religion. Section 31(1) of the Constitution then goes on to state that persons who belong to a religious community, amongst others, may not be denied the right to practise their religion with other members of that community. Section 9(3) of the Constitution prohibits the state from unfairly discriminating against any person directly or indirectly on several grounds, which include the ground of religion. Section 9(4) of the Constitution on the other hand prohibits any person from unfairly discriminating against any other person on the ground of religion, amongst others. These constitutional protections resonate in both the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998. Despite these protections, the right to freedom of religion is still a contested subject in the workplace, inter alia. The contestation intensifies when the right to freedom of religion results in an employee not being able to comply with one or more of the employer's workplace needs. Employers' who do not understand the balance that has to be struck between the employee's right to freedom of religion and its workplace needs will often find themselves on the wrong side of our labour laws if they dismiss an employee without having due regard to the employee's religion. This is what transpired in TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC).
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/7973
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Shamier Ebrahim
oai:journals.assaf.org.za:article/8007
2021-11-17T10:37:47Z
per:CN
driver
"211117 2021 eng "
1727-3781
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South Africa's Journey to Climate Change Regulation: Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP)
Papacostantis, Helen
University of the Witwatersrand https://orcid.org/0000-0001-7872-4461
Concerns over climate change are increasingly reaching an urgent level. Many countries have begun focusing their efforts on mitigating its devastating impact. At the same time countries need to ensure their economic growth and development, thus calling for greater energy usage leading to increased greenhouse gas emissions. As the environment struggles to adapt to the rapid changes brought about by climate change, the effects are felt by the most vulnerable of the world's population. Reports from the Intergovernmental Panel on Climate Change have outlined the reasons and the effects of climate change providing actions required to mitigate these effects. Unfortunately developing countries, including South Africa, are the most affected. The current energy system in the country is primarily based on fossil fuels, which emit the greatest amount of greenhouse gases. To ensure that South Africa mitigates the impact, government needs to safeguard and promote sustainable development. To do this South Africa should weigh its energy mix in relation to the environment and the wellbeing of its citizens. A comprehensive and robust regulatory framework on climate change is required thus ensuring the achievement of South Africa's developmental goals well into the future and ensuring participation in the global effort against climate change. Earthlife Africa Johannesburg v Minister of Environmental Affairs 2017 2 All SA 519 (GP) signifies a good start towards the effective regulation of climate change in South Africa.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/8007
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Helen Papacostantis
oai:journals.assaf.org.za:article/8021
2021-03-01T07:47:54Z
per:CN
driver
"210226 2021 eng "
1727-3781
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Quo Vadis Patent Litigation: Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC) - In Search of the Bigger Picture on Patent Validity
Shozi, Bonginkosi
University of KwaZulu-Natal https://orcid.org/0000-0003-2994-0795
Vawda, Yousuf
University of KwaZulu-Natal https://orcid.org/0000-0001-6101-9520
In October 2019 the Constitutional Court (CC) handed down judgment in the matter of Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC). This is its first judgment dealing with the validity of a patent and, as it concerns issues that go the heart of patent law, the judgment potentially has far-reaching implications for patent litigation in South Africa.
At issue was the question of whether a court's finding of patent validity on one ground in a revocation hearing ought to have a bearing on a subsequent infringement hearing on the same patent, to the extent that the alleged infringer is barred from raising a different ground to attack the validity of a patent. In essence, did the attempt to do so offend the principle of res judicata? This was a direct appeal to the Constitutional Court after the High Court ruled that it did so offend, and the Supreme Court of Appeal refused leave to appeal. The Constitutional Court was deadlocked on this issue, with the result that the decision of the High Court refusing Ascendis' application to amend to introduce a new ground of attack stands, and the res judicata objection was upheld.
The decision raises important questions about the application of the principle of res judicata in such cases where the Patents Act allows dual proceedings for revocation and infringement actions, the meaning of provisions of the Act as they relate to the certification of patent claims, and the broader public interest considerations implicated in patent law adjudication.
This note observes that while the outcome sends a strong signal about the courts' displeasure at attempts to prosecute "repeat litigation", an unsatisfactory outcome is that patents can apparently be validated on the basis of merely one of the mandatory requirements for patent validity as required by the Act. It argues that such an outcome is undesirable and does not serve the public interest. This is because it closes the door to further challenges while potentially thousands of patents, which would not have passed the validity test had they been subjected to substantive examination, remain on the patent register.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/plain
application/epub+zip
https://perjournal.co.za/article/view/8021
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Bonginkosi Shozi, Yousuf Vawda
oai:journals.assaf.org.za:article/8111
2021-03-30T10:10:11Z
per:CN
driver
"210329 2021 eng "
1727-3781
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Reviewing the Speaker's Decision: A Brief Synopsis of UDM v Speaker of the National Assembly 2017 5 SA 300 (CC)
Slade, Bradley BV
University of Stellenbosch https://orcid.org/0000-0001-8855-1269
In United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC), the Constitutional Court set out certain factors that the Speaker of the National Assembly must consider when deciding the manner in which voting in a motion of no confidence proceeding must be conducted. These factors would ostensibly also be relevant when the Speaker's decision as to the proper voting procedure is reviewed in future.
This note considers the law governing the review of the Speaker's decisions and finds that although the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA. Furthermore, the Court's exposition of certain factors against which the Speaker's decision can now be reviewed creates uncertainty as to whether the review in terms of legality is a basic rationality review as is generally the case or a stricter form of review closer to review that is possible under PAJA.
The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it now appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated. Although the Court, or courts in general, has the power to review the exercise of public power in a system of constitutional supremacy, it should consider the impact that its judgments may have on co-equal branches of government, as a failure to do so may negatively impact on the relationship between the different branches of government and dilute the already frayed separation of powers doctrine.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/plain
application/epub+zip
https://perjournal.co.za/article/view/8111
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Bradley BV Slade
oai:journals.assaf.org.za:article/8918
2021-04-15T06:25:53Z
per:CN
driver
"210414 2021 eng "
1727-3781
dc
Can an Emoji Be Considered as Defamation? A Legal Analysis of Burrows v Houda [2020] NSWDC 485
Singh, Priya
University of KwaZulu-Natal
This article considers the Australian case of Burrows v Houda 2020 NSWDC 485 and the English case of Lord McAlpine v Bercow 2013 EWHC 1342 (QB). Both cases considered the question of whether emojis could be considered to be defamatory and answered the question in the affirmative. This article also explores whether the South African courts will follow the lead of the Australian and English courts and concludes that emojis also have the potential to be considered defamatory in our law.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/plain
application/epub+zip
https://perjournal.co.za/article/view/8918
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Priya Singh
oai:journals.assaf.org.za:article/8923
2021-09-13T05:00:11Z
per:CN
driver
"210630 2021 eng "
1727-3781
dc
Automated Facial Recognition in Law Enforcement: The Queen (On Application of Edward Bridges) v The Chief Constable of South Wales Police
Gordon, Barrie
University of South Africa
The use of automated facial recognition in law enforcement is still a novel practice and as a result the legislative framework for this technology is ill-defined. The judgement of The Queen (on application of Edward Bridges) v The Chief Constable of South Wales Police [2020] EWCA Civ 1058 is the first case in the world that examines pertinent legal questions pertaining to this new technology. Automatic facial recognition may be used in law enforcement, but to prevent massive human rights violations, operators should perform their duties within a well-defined legal framework where discretion is kept to the minimum, and strict data-retention policies are followed. Furthermore, human oversight should always be part of an automated facial recognition system to ensure accuracy, fairness, and compliance with the law.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/plain
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https://perjournal.co.za/article/view/8923
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Barrie Gordon
oai:journals.assaf.org.za:article/9199
2021-04-20T09:32:03Z
per:CN
driver
"210415 2021 eng "
1727-3781
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Post-resignation Survival of Fiduciary Duties: Big Catch Fishing Tackle Proprietary Limited v Kemp (17281/18) 2019 ZAWCHC 20 (5 March 2019)
Cassim, Rehana
University of south Africa https://orcid.org/0000-0001-6179-2361
In Big Catch Fishing Tackle Proprietary Limited v Kemp (17281/18) 2019 ZAWCHC 20 (5 March 2019) the Western Cape Division, Cape Town had to determine whether a former director of a company continued to owe fiduciary duties to the company after he had resigned, and if so, whether he could temporarily be interdicted from competing with the company until the main action was heard in court. The court dismissed the company's application for an interim interdict. This article critically analyses the judgment in regard to the post-resignation fiduciary duties of directors. The judgment is noteworthy as it sheds light on the post-resignation fiduciary duties of directors – an area of law which is still developing in South African law. This article contends that the court incorrectly conflated the legal principles relating to the appropriation of corporate opportunities with the misuse of confidential information. It is further argued that courts should not lay down a closed list of instances when directors' fiduciary duties will continue post-resignation, as the court attempted to do in this case. It is suggested that courts should adopt a flexible and pragmatic approach in determining when a director's fiduciary duties will survive after his or her resignation.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/plain
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https://perjournal.co.za/article/view/9199
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Rehana Cassim
oai:journals.assaf.org.za:article/9519
2021-11-19T10:24:06Z
per:CN
driver
"211119 2021 eng "
1727-3781
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Throwing the Unlawful Detention Jurisprudence into Turmoil: A Critique of De Klerk V Minister of Police 2020 1 SACR 1 (CC)
Msaule, Phindile Raymond
Before the judgement in De Klerk v Minister of Police 2020 1 SACR 1 (CC), (de Klerk), a plaintiff could claim damages for unlawful arrest and detention after the first appearance in court if the arresting (or the investigating) officer had conducted himself unlawfully in addition to the unlawful arrest. The conduct of the arresting (or investigating) officer had to be such that it influenced the prosecution and/or the court to deny the plaintiff bail. In De Klerk the majority of the Constitutional Court (CC), after assuming that factual causation had been proven, held the Minister of Police (Minister) liable for the unlawful arrest and detention of the plaintiff (including detention after the plaintiff had appeared in court). This was despite the CC’s having found that the conduct of the arresting officer after the appearance of the plaintiff in court had been lawful. The CC held that the arresting officer foresaw that by not releasing the plaintiff, the plaintiff would be remanded in detention – the unlawful conduct. The arresting officer was aware that the practice in the court where the plaintiff appeared was to remand all first appearance cases without considering the accused for release on bail. This note contends that the CC's decision does not bear scrutiny. The flaw in the CC's decision arose from its assumption that factual causation had been proven in this case. This faulty approach flowed from the CC's unconventional application of the "but-for" test. Instead of substituting the defendant's actual conduct for the hypothetical reasonable conduct, the CC held that it was the defendant's conduct per se that had caused the plaintiff harm. On this application of the "but-for" test, an arresting officer is unlikely to escape liability for an unlawful arrest and detention even if his or her conduct ceases to be unlawful at one stage or another. The Minister was held liable for the blameworthy conduct of the arresting officer up to the time of the plaintiff's appearance in court. The arresting officer played no role whatsoever after the appearance of the plaintiff in court. It is therefore absurd to hold that her conduct was the factual cause of the damage the plaintiff suffered. Ordinarily the Minister would not be held liable for detention after the court appearance. There was nothing extraordinary in the De Klerk case warranting the Minister’s being held delictually liable for the post-court-appearance detention. The plaintiff failed to prove that it was the conduct of the arresting officer that caused the plaintiff damage post the court appearance.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/9519
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Phindile Raymond Msaule
oai:journals.assaf.org.za:article/10517
2021-10-13T08:21:25Z
per:CN
driver
"211013 2021 eng "
1727-3781
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Determining the True Reason for an Alleged Section 187(1)(c) Dismissal: A Discussion of National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC)
Newaj, Kamalesh
University of Pretoria https://orcid.org/0000-0001-6311-998X
On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand.
The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC).
This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/10517
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Kamalesh Newaj
oai:journals.assaf.org.za:article/10703
2021-09-14T13:41:58Z
per:CN
driver
"210914 2021 eng "
1727-3781
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Discovering the Value of Liberty in Intellectual Property Adjudication: A Methodological Critique of the Reasoning in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ)
Shay, Richard
UNISA
Moleya, Ndivhuwo Ishmel
Unisa https://orcid.org/0000-0003-0790-8540
This article discusses the recent decision in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ), which concerned a claim of trade mark infringement in terms of sections 34(1)(a) and 34(1(c) of the Trade Marks Act 194 of 1993 and unlawful competition on a developed reading of the common law. This article argues that the court arrived at the correct conclusion by the incorrect means and failed to adequately construe the array of constitutional interests and considerations that pertained to the matter on the facts. Further, the lack of clarity on the appropriate constitutional port of entry for the judicial enquiry unnecessarily leaves future courts guessing regarding the correct methodology to employ in cases where intellectual property rights are asserted in opposition to constitutional rights and interests. It is argued that the transformative impetus of section 39(2) of the Constitution of the Republic of South Africa, 1996, as well as numerous substantive constitutional provisions are undermined when courts neglect to anchor judicial reasoning in the constitutional context and merely apply a constitutional veneer to whatever outcome has already been reached. Accordingly, we argue that courts are under a general obligation to root all adjudication in constitutional norms and method, which, we submit, secures a thicker concept of the value of liberty than has been produced in this decision.
Faculty of Law, North-West University, South Africa
2021-01-12 09:16:29
Peer-reviewed article
application/pdf
text/xml
application/epub+zip
https://perjournal.co.za/article/view/10703
Potchefstroom Electronic Law Journal; Vol. 24 (2021)
eng
Copyright (c) 2021 Richard Shay, Ndivhuwo Ishmel Moleya
oai:journals.assaf.org.za:article/11486
2022-10-24T10:31:47Z
per:CN
driver
"220531 2022 eng "
1727-3781
dc
The Payout of a Life Insurance Policy into an Unrehabilitated Insolvent's Estate: Malcolm Wentzel v Discovery Life Limited: In Re Botha v Wentzel (1001/19) [2020] ZASCA 121 (2 October 2020)
Mabe, Zingapi
University of South Africa, Department of Mercantile Law https://orcid.org/0000-0002-4106-2385
Mbiriri, Edith
University of South Africa https://orcid.org/0000-0002-2762-824X
One of the consequences of sequestration is the vesting of the property of an insolvent person in the trustee of the insolvent estate. However, not all the property of the insolvent person vests in the trustee as there are some exceptions. Under section 63 of the Long-Term Insurance Act 52 of 1998, life insurance policy benefits are excluded from forming part of the insolvent estate and thus do not vest in the trustee and are unavailable for the payments of the debts of the insolvent. The exclusion of these benefits diverts property from the insolvent estate and, consequently, the creditors who could benefit from the property. This note discusses Malcolm Wentzel v Discovery Life Limited: In Re Botha v Wentzel (1001/19) [2020] ZASCA 121 (2 October 2020), and considers whether a beneficiary of a life insurance policy payout is required to hand over such payment to the trustee of his insolvent estate. Further, it highlights the conflicting provisions between insolvency legislation and insurance legislation and examines the effects of section 63 on an insolvent estate where the insolvent was married in community of property.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/11486
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Zingapi Mabe, Edith Mbiriri
oai:journals.assaf.org.za:article/11707
2022-12-14T07:13:48Z
per:CN
driver
"221005 2022 eng "
1727-3781
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Forfeiture of Patrimonial Benefits and the Dissolution of Marriage through Death: Monyepao v Ledwaba (1368/18) [2020] ZASCA 54 (27 May 2020)
Sibisi, Siyabonga
UKZN https://orcid.org/0000-0002-2372-5173
Section 9 of the Divorce Act 70 of 1979 provides for the forfeiture of patrimonial benefits when a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage. This case note discusses the possibility of an order for forfeiture of patrimonial benefits when a marriage dissolves after death under certain circumstances. It follows on the Supreme Court of Appeal decision in Monyepao v Ledwaba (1368/18) [2020] ZASCA 54 (27 May 2020). The respondent, the estranged first surviving spouse, and the deceased were married in terms of customary law in 2007. In 2008 the deceased left the matrimonial home. In 2009 the respondent entered into a civil marriage with another person. In 2010 the deceased also entered into a customary marriage with the appellant, the second surviving spouse. In 2012 the deceased died. Following his death, both the appellant and the respondent, as surviving spouses, were appointed co-executors of the deceased estate. The appellant sought an order directing the Master to withdraw the appointment as co-executor of the first surviving spouse on the ground that she had renounced her earlier customary marriage to the deceased when she entered into a civil marriage with another person. Alternatively, she sought an order in terms of section 9 of the Divorce Act that the first surviving spouse forfeit patrimonial benefits in favour of the deceased estate. The High Court, Polokwane granted the order. However, on appeal the full bench, Polokwane overturned the decision of the court a quo. The appellant took the decision of the full bench on appeal to the SCA. The SCA dismissed her appeal and upheld the decision of the full bench on the ground that a forfeiture order can be made only during divorce proceedings and it may be brought only by a party to the marriage and not by a third party. This note turns on this aspect of the decision. It will be argued that a forfeiture order should be available when a marriage is dissolved through death. It will also argue that a second spouse is a party to a customary marriageSection 9 of the Divorce Act 70 of 1979 provides for the forfeiture of patrimonial benefits when a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage. This case note discusses the possibility of an order for forfeiture of patrimonial benefits when a marriage dissolves after death under certain circumstances. It follows on the Supreme Court of Appeal decision in Monyepao v Ledwaba (1368/18) [2020] ZASCA 54 (27 May 2020). The respondent, the estranged first surviving spouse, and the deceased were married in terms of customary law in 2007. In 2008 the deceased left the matrimonial home. In 2009 the respondent entered into a civil marriage with another person. In 2010 the deceased also entered into a customary marriage with the appellant, the second surviving spouse. In 2012 the deceased died. Following his death, both the appellant and the respondent, as surviving spouses, were appointed co-executors of the deceased estate. The appellant sought an order directing the Master to withdraw the appointment as co-executor of the first surviving spouse on the ground that she had renounced her earlier customary marriage to the deceased when she entered into a civil marriage with another person. Alternatively, she sought an order in terms of section 9 of the Divorce Act that the first surviving spouse forfeit patrimonial benefits in favour of the deceased estate. The High Court, Polokwane granted the order. However, on appeal the full bench, Polokwane overturned the decision of the court a quo.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/11707
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Siyabonga Sibisi
oai:journals.assaf.org.za:article/11756
2022-10-24T10:31:40Z
per:CN
driver
"220603 2022 eng "
1727-3781
dc
Re-examining the Constitutional Court's Approach to the Property Question Since First National Bank of SA Ltd T/A Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd T/A Wesbank v Minister of Finance 2002 4 SA 768 (CC)
Sono , Nhlanhla
University of South Africa https://orcid.org/0000-0003-4727-2321
The First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC) (FNB) decision led to the development of several questions that need to be answered when deciding whether there had been a deprivation of property for the purposes of section 25(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution). The first question that needs to be asked when deciding whether there has been deprivation is whether that which was taken away from the property holder qualified as property for the purposes of section 25(1).
It appears that the Court in post-FNB case law fails to decide the first question in a principled manner. In some cases the Court simply assumed that the interests at issue were property for the purposes of section 25 without a thorough investigation or clear guidelines regarding whether such interests were indeed property. Analysis of post-FNB case law also indicates that there are seemingly two approaches that may need to be followed to decide complicated categories of property interest. The Court has not made it clear which approach should be followed.
In this article, I examine the Constitutional Court's approach to deciding what property is for section 25(1) purposes. The purpose is to determine how and to what extent the Court has decided what constitutes property for constitutional purposes. After an examination of the FNB decision and post-FNB case law, as well as analysing academic criticism, I suggest guidelines that the Court may follow to decide what constitutes property for section 25(1) purposes in future cases.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/11756
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Nhlanhla Sono
oai:journals.assaf.org.za:article/11989
2022-10-24T10:32:00Z
per:CN
driver
"220414 2022 eng "
1727-3781
dc
King v De Jager: Implications for Religious Based Discrimination in Wills
Osman, Fatima
University of Cape Town http://orcid.org/0000-0002-1357-7840
Effendi, Gökșen
University of Johannesburg
In King v De Jager 2021 5 BCLR 449 (CC), the Constitutional Court held that a clause in a private will that unfairly discriminated against beneficiaries based on gender was unlawful and unenforceable. This note considers the implications of the judgment for religion-based discrimination in wills, and in particular wills that incorporate the gender-discriminatory Islamic system of inheritance. After explaining the Constitutional Court judgment, the note argues that the Court was well within its powers to consider the enforceability of discrimination in the private sphere. More importantly, we argue that the case rings a bell of caution regarding gender-discriminatory provisions in private wills. Gender-based discrimination in Islamic inheritance law perpetuates disadvantage against a historically disadvantaged group, and the courts and legislature have been emphatic in their stance against gender discrimination in inheritance. The note thus argues that a testator's religious beliefs are not enough to tip the scales and render gender discrimination justifiable. We urge individuals who want to dispose of their assets following their religious beliefs to seek estate planning advice, cognisant of the potential impact of King v De Jager CC
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/11989
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Fatima Osman, Gökșen
oai:journals.assaf.org.za:article/12743
2022-10-24T10:30:56Z
per:CN
driver
"220728 2022 eng "
1727-3781
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Judging the Holy Cow: Examining the Role of Implicit Bias in Judicial Rulings – An Analysis of the Decision in Mbena v Minister of Justice and Correctional Services 2015 4 All SA 361 (ECP)
Lӧtter , Casper
North-West University https://orcid.org/0000-0001-7787-1419
This contribution is an investigation into the role of implicit (as opposed to explicit) biases in judicial rulings by examining the judgment of Chetty J in Mbena v Minister of Justice and Correctional Services 2015 4 All SA 361 (ECP). Implicit bias refers to prejudice on a visceral level, namely unconscious bias, of which the bearer, to wit the judicial officer, is unaware. I suggest that exploring implicit bias in judicial rulings in the context of South Africa's harsh stigmatising shaming culture driven by incarceration as its dominant sentencing regime, will introduce a valuable window in identifying, as well as possibly illuminating and eliminating, unjustified and harmful biases. In this contribution I specifically focus on the generalised bias against ex-offenders in South Africa's harsh stigmatising shaming culture (which I distinguish from integrative shaming cultures found in Japan, China and many African societies) which attitude perpetuates the marginalisation, stigmatisation and discrimination of offenders which exceed their court-sanctioned punishment. I attempt to outline the reasons as to why the isolation and elimination of social biases of this nature are important since, in the view of many criminologists but particularly John Braithwaite, stigma is counter-productive and criminogenic as it leads to enhanced recidivism rates. To this end, I analyse the salient features of the case within a broad social context (including a consideration of phenomena such as the prison-industrial complex on South African soil) which exceeds a narrow legal framework. My roadmap for the paper encompasses a consideration of the salient, albeit disputed, facts of the case with a view towards an alternative, if plausible reading based on the probabilities of the two sets of conflicting facts presented by the opposing parties. I highlight the significance of the judgment before recommendations for improved public policy formulation are proffered.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/12743
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Casper Lӧtter
oai:journals.assaf.org.za:article/12746
2022-10-24T10:31:17Z
per:CN
driver
"220615 2022 eng "
1727-3781
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Independent Candidacy and Electoral Reform: New Nation Movement NPC v President of the Republic of South Africa
Pretorius, Loot
Faculty of Law at the University of the Free State https://orcid.org/0000-0003-2732-0541
In the New Nation case, the Constitutional Court declared the provisions of the Electoral Act that prevent independent candidates from competing in provincial and national elections unconstitutional. It ruled that the impugned provisions violated independent candidates' constitutional rights to stand for public office, to freedom of association and to dignity. In a minority judgment, Froneman J disagreed and held that the Constitution contemplates a right to contest elections as a party-nominee only. The differences between the majority and minority judgments are largely the result of distinct interpretive approaches. The majority conducted an analysis of the right to stand for public office within a restricted textual framework that has the potential to disturb the harmonious inter-relationship between the right and the electoral and parliamentary framework for its realisation. This result flows from the fact that the Constitution still reflects the exclusively party-based electoral and parliamentary systems of its predecessor in several important respects. At best, this situation may result in independents being largely at the mercy of political parties for meaningful execution of their legislative and oversight obligations. At worst, they may be excluded from exercising core parliamentary functions altogether. Therefore, to avoid disturbing the normative coherence between the right to stand for public office, the foundational democratic values, and the electoral and parliamentary arrangements, constitutional amendments appear to be necessary for the implementation of the court's order. In any event, expectations about the contribution to electoral reform of allowing independents to contest elections must be tempered by the low political impact of independent representatives on governance, as well as the ambivalence surrounding the democratic functionality of independent candidacy, when measured against the values of transparency and accountability.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/12746
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Loot Pretorius
oai:journals.assaf.org.za:article/12889
2022-10-24T10:31:13Z
per:CN
driver
"220615 2022 eng "
1727-3781
dc
The Supreme Court of Zimbabwe's Chigwada Decision and Its Implications for Testamentary Dispositions and Enforcement of Section 26 of the Constitution of Zimbabwe
Makwaiba, Basutu S
University of Zimbabwe https://orcid.org/0000-0003-3761-8077
The Supreme Court of Zimbabwe recently handed down a judgment on the determination of whether the law that governs testamentary dispositions of estates binds a testator to bequeath his or her share of property to the surviving spouse. This was an appeal case against the judgment of the High Court which had held that a testator is bound to leave his or her property to the surviving spouse. Albeit the fact that section 5(1) of the Wills Act establishes the doctrine of freedom of testation, section 5(3)(a) of the Wills Act prohibits a testator to execute a will that disinherits a surviving spouse. The provision has been interpreted inconsistently by the High Court for the past years. One category of judgments held that a testator could disinherit a surviving spouse based on freedom of testation and that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In contrast, the other set of dissenting judgments held that a will that disinherited a surviving spouse was invalid. Further, the courts held that the provisions of the Deceased Estates Succession Act, in particular section 3A which grants a surviving spouse the right to inherit the matrimonial home applies to testate succession. In overturning the High Court decision, the Supreme Court authoritatively held that section 5(3)(a) of the Wills Act could not be interpreted to mean that a surviving spouse cannot be disinherited in a will. The Court based its decision on the doctrine of freedom of testation entrenched in the Wills Act and the Constitution. The Supreme Court also conclusively held that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In arguing her case in the Supreme Court, the surviving spouse among other arguments contended that section 26 of the Constitution of Zimbabwe provides for equality of rights of spouses and the protection of children and spouses upon the dissolution of marriage through death or divorce. The Supreme Court disapproved the previous High Court decisions which held that a will that disinherited a surviving spouse was invalid as it contravenes section 26 of the Constitution. The Court held that section 26 of the Zimbabwean Constitution is not directly enforceable, does not bestow rights on individuals and does not prohibit the disinheritance of a surviving spouse. The Court held that the provisions of section 26 are found under the National Objectives which are intended to guide the state in the formulation of laws relating to dissolution of marriage through death. In this article, I argue that the Supreme Court decisively answered the discordant questions on whether a surviving spouse can be disinherited through a will and whether the provisions of the Deceased Estates Succession Act apply to testamentary dispositions. However, the Court missed an opportunity to develop the Zimbabwean jurisprudence on the enforcement of National Objectives, in particular section 26 of the Constitution.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
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https://perjournal.co.za/article/view/12889
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Basutu Makwaiba
oai:journals.assaf.org.za:article/13096
2022-12-14T07:15:01Z
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"221101 2022 eng "
1727-3781
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Once, Twice, Three Times Delayed: Considering A Permanent Stay of Prosecution in Rodrigues v The National Director of Public Prosecutions
Van der Linde, Delano Cole
Stellenbosch University https://orcid.org/0000-0003-3347-3077
The National Prosecuting Authority is vested with the power, as dominus litus, to institute and discontinue charges whereas high courts are empowered to order a permanent stay of the prosecution prohibiting the continuation of the trial. However, such an order is considered to be a "drastic remedy" and is not empowered in terms of statutes such as the Criminal Procedure Act 51 of 1977 but rather vested in the right of an accused to have their trial begin and conclude without unreasonable delay. A permanent stay of the prosecution is an order made on a case-by-case basis, balancing various factors such as the prejudice faced by the accused, systemic factors as well as the reason for the delay. The ultimate question however remains whether the lapse of time in a particular case is unreasonable. The Supreme Court of Appeal in Rodrigues v The National Director of Public Prosecutions had to evaluate whether the 47-year-delay and eventual prosecution between the death of anti-apartheid activist, Ahmed Timol, was unreasonable. Both the majority and minority of the Supreme Court of Appeal, although for different reasons, concluded that the delay was not unreasonable. For most of the 47 years, prosecuting the accused was not possible due to the surrounding historical and political reasons (including the moratorium of cases arising from the Truth and Reconciliation Commission). The National Prosecuting Authority, as soon as it was possible, initiated the prosecution of the accused. Although applications for a permanent stay are mostly viewed as prejudicial to the accused, the majority and minority both acknowledge the families of the victims in this case. Such a perspective is welcomed as the role of the victim in the criminal justice process is often neglected.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/13096
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Dr Delano Cole Van der Linde
oai:journals.assaf.org.za:article/13159
2022-10-24T10:31:10Z
per:CN
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"220624 2022 eng "
1727-3781
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"In Which the Partners Undertook Reciprocal Duties of Support" – A Discussion of the Phrase as Used in Bwanya v Master of the High Court, Cape Town
Barratt, Amanda
University of Cape Town https://orcid.org/0000-0001-6232-2695
In December 2021 the Constitutional Court delivered judgment in Bwanya v Master of the High Court, Cape Town. The court ruled that survivors of life-partnerships "in which the partners undertook reciprocal duties of support" would be entitled to claim benefits under the Maintenance of Surviving Spouses Act (the MSSA) and the Intestate Succession Act (the ISA). This case note focusses on the phrase "in which the partners undertook reciprocal duties of support." It examines the jurisprudential development of the phrase through the case law. It considers whether reliance on the phrase is likely to present an obstacle to potential claimants or whether the phrase can be interpreted in a way that broadens the protection provided by the MSSA and ISA so as to ensure that all vulnerable partners can be protected.
The note suggests that the optimal way in which to interpret the requirement that the life-partners had undertaken reciprocal duties of support would be to focus on the claimant's needs and financial dependence and to assess how the law can provide protection and redress to those who have incurred relationship-induced dependence as a consequence of the particular form and nature of the reciprocal support provided in the intimate relationship. Previous court judgments have noted the typically gendered nature of the contributions made by family members. The law must ensure that it furthers the constitutional goal of achieving substantive equality between men and women, while also acknowledging and responding to the intersectional forms that discrimination and disadvantage assumes.
Faculty of Law, North-West University, South Africa
2022-01-11 06:19:35
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/13159
Potchefstroom Electronic Law Journal; Vol. 25 (2022)
eng
Copyright (c) 2022 Amanda Barratt
oai:journals.assaf.org.za:article/13937
2023-05-29T13:09:01Z
per:CN
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"230404 2023 eng "
1727-3781
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Consent and Other Ancillary Matters as Requirements of a Customary Marriage: LNM v MMM (2020/11024) [2021] ZAGPJHC 563 (11 June 2021)
Sibisi, Siyabonga
University of KwaZulu-Natal https://orcid.org/0000-0002-2372-5173
Consent may be seen as a fundamental human right. On the issue of marriage, people should only be married with their consent. A marriage without consent is a forced marriage. Section 3(1)(a)(ii) of the Recognition of Customary Marriages Act 120 of 1998 not only requires consent, but also requires specific consent for a marriage to take place under customary law. The Act is clear that consent to being married under customary law is one of the requirements for validity. If specific consent is lacking, there cannot be a valid customary marriage. This case note focusses on the decision in LNM v MMM where specific consent was one of the issues. It discusses whether consent of the guardian is still a requirement for customary marriages under the Act. It also discusses the required specific consent in detail and then considers the form that specific consent should take, noting that specific consent should not be inferred from the act of negotiating and delivering ilobolo as African people do for a civil marriage. In LNM v MMM the court also held that the handing over of the bride is "not imperative". By this, the court meant that the handing over of the bride was an unnecessary custom. This is not in accordance with the cases referred to in the judgment. This case note will respond to this. Should a customary marriage without specific consent to marry under customary law be annulled?
Faculty of Law, North-West University, South Africa
2023-02-14 09:58:49
Peer-reviewed article
application/pdf
text/plain
application/epub+zip
https://perjournal.co.za/article/view/13937
Potchefstroom Electronic Law Journal; Vol. 26 (2023)
eng
Copyright (c) 2023 Siyabonga Sibisi
oai:journals.assaf.org.za:article/14173
2023-05-29T13:07:21Z
per:CN
driver
"230403 2023 eng "
1727-3781
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Perfecting a General Notarial Bond: You Can't Have your Cake and Eat It! ABSA Bank Limited v Go on Supermarket (Pty) Limited (The Spar Group Limited intervening) (9442/2022) [2022] ZAGPJHC 173 (24 March 2022)
Brits, Reghard
Research Fellow: Department of Private Law https://orcid.org/0000-0002-2416-4339
Koekemoer, Michel Marlize
Associate Professor; University of the Western Cape https://orcid.org/0000-0002-8880-7399
A general notarial bond registered over movable property grants the bondholder a real security right enforceable against third parties only if the bond has been perfected by transferring possession of the property to the bondholder. Based on the facts and judgment in Absa Bank Limited v Go On Supermarket (Pty) Limited, this analysis revisits the basic principles of and requirements for the perfection of a general bond. We ultimately criticise the judgment on three scores. Firstly, the court regarded the form of delivery (transfer of possession) applicable in this matter as symbolic delivery, but we point out that it amounted to constitutum possessorium – meaning that the attempted perfection of the bond was ineffective. Secondly, the parties conceded and the court accepted that the general bond could not be perfected over property subject to the special notarial bond of another creditor. We reason that this is incorrect. It is indeed possible to attach property subject to the security right of another creditor, although the first creditor's rights will be preferred over those of the creditor who subsequently attached the property. Thirdly, the court rejected the argument that the general bond could not be perfected over property owned by another creditor in terms of a reservation-of-ownership clause in a sale agreement. However, the court should not have rejected this argument, since it was correct. A general bond indeed cannot cover property belonging to someone other than the debtor, unless the person agreed, and thus it was not possible in this case to attach the property belonging to someone other than the debtor.
Faculty of Law, North-West University, South Africa
2023-02-14 09:58:49
Peer-reviewed article
application/pdf
text/plain
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https://perjournal.co.za/article/view/14173
Potchefstroom Electronic Law Journal; Vol. 26 (2023)
eng
Copyright (c) 2023 Michel Koekemoer, Reghard Brits
oai:journals.assaf.org.za:article/14595
2023-11-23T04:12:26Z
per:CN
driver
"231031 2023 eng "
1727-3781
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A Brief Analysis of the Judgment in Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)
Abduroaf, Muneer
University of the Western Cape https://orcid.org/0000-0002-1378-1251
Moosa, Najma
University of the Western Cape https://orcid.org/0000-0002-3174-1923
On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children.
Faculty of Law, North-West University, South Africa
2023-02-14 09:58:49
Peer-reviewed article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/14595
Potchefstroom Electronic Law Journal; Vol. 26 (2023)
eng
Copyright (c) 2023 Muneer Abduroaf, Najma Moosa
oai:journals.assaf.org.za:article/14640
2023-10-09T13:07:28Z
per:CN
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"230620 2023 eng "
1727-3781
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S v P – The Abuse of Protection Orders to "Gag" Victims of Rape
Swemmer, Sheena
Centre for Applied Legal Studies https://orcid.org/0000-0002-9779-3291
In recent years there has been the emergence of global and local anti-gender-based violence movements such as #MeToo and, in South Africa, #menaretrash, which has precipitated an increase in the disclosure of the names of the alleged perpetrators of sexual violence by the survivors. The increase in the disclosure of these names has been met with the intensification of legal processes by alleged perpetrators to counter and silence survivors.
This case note will focus on the recent appeal case of S v P 2022 2 SACR 81 (WCC) in the High Court of South Africa, Western Cape Division, in Cape Town. In this case the court had to consider whether the court a quo was correct in issuing a final protection order (in terms of the Protection from Harassment Act 17 of 2011) against the appellant (S) where the court a quo found that her act of harassment was a third party's public disclosure of the respondent (P) as her rapist.
It will be argued that the Western Cape High Court was correct in finding that the court a quo should not have issued a final protection order against S. It will be further argued that the reasons to overturn this decision included the court a quo's failure to appreciate the gendered purpose of the Protection from Harassment Act and that P misused and abused the Act in order to silence S. It will then be argued that one of the reasons why survivors choose to disclose alleged perpetrators' names on social platforms is a societal contextual reason, which includes the high rates of gender-based violence in South Africa alongside the high rates of attrition in gender-based violence cases in the criminal justice system.
Finally, I will consider the cases of Mdlekeza v Gallie 2021 (WCHC) (unreported) case number 15490/2020 of 20 April 2021 and Booysen v Major (WCHC) (unreported) case number 5043/2021 of 30 August 2012 and argue that these cases are further examples of this abuse of process employed to silence survivors. With the courts seeing an increase in these applications to silence victims, it is argued that the courts must adopt a feminist-contextualised approach in order to avoid gagging survivors of gender-based violence and being complicit in the increasing weaponisation of court processes by alleged perpetrators.
Faculty of Law, North-West University, South Africa
2023-02-14 09:58:49
Peer-reviewed article
application/pdf
text/plain
application/epub+zip
https://perjournal.co.za/article/view/14640
Potchefstroom Electronic Law Journal; Vol. 26 (2023)
eng
Copyright (c) 2023 Sheena Swemmer
oai:journals.assaf.org.za:article/15002
2023-08-29T06:12:23Z
per:CN
driver
"230605 2023 eng "
1727-3781
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Does Mistaken Belief in Consent Constitute a Defence in South African Rape Cases?
Stal, Serone
Fort-Hare University https://orcid.org/0000-0002-9488-485X
In the 2020 case of Coko v S 2022 1 SACR 24 (ECG), the Eastern Cape High Court held that a person's mistaken belief in consent to penetrative sex could constitute a valid defence in law. In statutory provisions and jurisprudence, the absence of the victim's consent is fundamental in establishing a case of rape. This paper evaluates the decision, where it was held that when an appellant reasonably believes that the complainant/victim had consented to sex, this alone could be enough to acquit the appellant of the charge of rape.
Faculty of Law, North-West University, South Africa
2023-02-14 09:58:49
Peer-reviewed article
application/pdf
text/plain
application/epub+zip
https://perjournal.co.za/article/view/15002
Potchefstroom Electronic Law Journal; Vol. 26 (2023)
eng
Copyright (c) 2023 Serone Stal
oai:journals.assaf.org.za:article/15810
2024-03-04T08:03:56Z
per:CN
driver
"240219 2024 eng "
1727-3781
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The Ramifications of International Law in South Africa: Blind SA v Minister of Trade, Industry and Competition (CCT 320/21) [2022] ZACC 33 (21 September 2022)
Forere , Malebakeng
University of Witwatersrand https://orcid.org/0000-0002-5293-9269
This work is centred on the judgment of the Constitutional Court in Blind SA v The Minister of Trade (CCT 320/21) [2022] ZACC 33 (21 September 2022), and the issues raised by this judgement. The main concern for this contribution is the overreliance on a non-ratified treaty – the Marrakesh Treaty –, which calls for the assessment of the place of international law in South Africa. The paper finds that while the issues raised in the Blind SA case – the rights of people with disability – are legitimate, the manner in which they were raised went beyond the prescripts of the Constitution.
Faculty of Law, North-West University, South Africa
2024-01-05 07:15:37
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/15810
Potchefstroom Electronic Law Journal; Vol. 27 (2024)
eng
Copyright (c) 2024 Malebakeng Forere
oai:journals.assaf.org.za:article/15845
2024-02-01T13:11:00Z
per:CN
driver
"240201 2024 eng "
1727-3781
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The Role of Public Policy in King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021)
van Zyl, Rika
University of the Free State https://orcid.org/0009-0006-7169-3504
In King v De Jager (CCT 315/18) [2021] ZACC 4 (19 February 2021), the Constitutional Court considered whether a discriminatory out-and-out disinheritance clause in a private will could be declared unenforceable in terms of public policy. This opened private wills with disinheritance clauses to the scrutinising evaluation of public values despite freedom of testation. Although public policy has always been an elusive concept, South African public policy is infused with constitutional values to give more clarity on the content of public policy. In King a conflation emerged between constitutional rights, legislative violations and public policy values, however. The court grappled with the question of whether to apply the Constitution directly based on a violation in terms of section 9(4) or whether the section 8 of the Equality Act should be applied directly through the subsidiarity principle, or whether the discriminatory clause should be evaluated through the public policy lens. Where the conflicting values were weighed up there seem to be hints of subjective views to tip the scales in favour of one value over another. This is a concern when public policy is used to advance a subjective view of what the community values more, especially when it involves the disruption of the devolvement of a deceased's estate. This underlines the difficult application of public policy values, even in a constitutional democracy, when competing values are at play.
Faculty of Law, North-West University, South Africa
2024-01-05 07:15:37
Peer-reviewed article
application/pdf
text/html
application/epub+zip
https://perjournal.co.za/article/view/15845
Potchefstroom Electronic Law Journal; Vol. 27 (2024)
eng
Copyright (c) 2024 Rika van Zyl