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Editorial
Rautenbach, Christa
North West University http://orcid.org/0000-0001-6641-0123
The first edition of 2015 boasts 13 contributions dealing with a variety of topics. The first article, by Ben Coetzee Bester and Anne Louw, discusses the persistence of the "choice argument", which is based on the rationale that domestic partners who choose not to marry cannot claim spousal benefits, and arrives at the conclusion that legislation should differentiate between registered and unregistered domestic partnerships for the purpose of spousal benefits. Ernst Marais has written two articles on expropriation. In the first he examines the meaning and role of state acquisition in South African law and in the second he deals with the distinction between deprivation and expropriation in the light of Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC), where the Constitutional Court recently revisited the distinction between the two concepts and held that the distinguishing feature of expropriation is that it entails state acquisition of property, whilst deprivation takes place where there is no such acquisition. The fourth article, by Emeka Amechi, explores the measures taken by the National Recordal System and Disclosure of Origins in leveraging traditional knowledge within the structure, content and conceptual framework of the patent system in South Africa. The South African Companies Act and the realization of corporate human rights responsibilities is the focus of Manson Gwanyanya's article. He comes to the conclusion that the wording of the Act is such that it prevent human rights abuses by companies. In her contribution Melanie Murcott discusses the development of the doctrine of legitimate expectations in South African law and the failure of the Constitutional Court to develop the doctrine even further in the recent case of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal. The second last article, which is by Lucyline Murungi, considers the implementation of the UN Convention on the Rights of Persons with Disabilities (2006) to provide for inclusive basic education in South Africa, and the last article, which is by Matome Ratiba, examines the significance of places of worship for Native Americans and demonstrates the valuable lessons South Africa could learn from the earth jurisprudence that has developed in the USA and elsewhere. The first note, authored by Magdaleen Swanepoel, discusses legal issues with regard to mentally ill offenders with specific reference to the cases where mental illness is raised as a defence in criminal cases. The second note, by Michelle Fuchs, deals with recent legal developments relating to the formalities involved when a mortgagee wants to declare immovable property executable to satisfy outstanding debt. The last contribution in this edition is a case note by Elmarie Fourie. She considers the question of what constitutes a benefit in terms of section 186(2) of the Labour Relations Act 66 of 1995, which was examined in Apollo Tyres South Africa (Pty)Ltd v CCMA 2013 5 BLLR 434 (LAC).
Faculty of Law, North-West University, South Africa
2015-04-13 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/13
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015)
eng
Copyright (c) 2015 Christa Rautenbach
oai:journals.assaf.org.za:article/495
2019-02-28T08:52:03Z
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Editorial
Rautenbach, Christa
http://orcid.org/0000-0001-6641-0123
This issue of PER consists of 11 articles and one case note dealing with a wide range of topics in the global legal landscape. Monray Botha analyses the responsibility of South African companies towards their employees for achieving social justice in the corporate world. Fawzia Cassim examines how identity thieves use the personal information of individuals to commit identity fraud and theft, and looks at legislative solutions introduced in South Africa, the United States of America, the United Kingdom and India to combat identity theft crimes. Howard Chitimira discusses the regulation of market manipulation in Australia with the purpose of assessing if lessons can be learnt from it for South Africa. Leentjie de Jong deals with parenting coordination, a new alternative dispute resolution process to alleviate the negative effects of high-conflict co-parenting cases on the South African court system and the children of divorce. Yvonne Donders investigates the cultural dimensions of the right to health endorsed by several treaty provisions and treaty monitoring bodies and comes to the conclusion that states can implement the right to the enjoyment of the highest attainable standard of health in a culturally sensitive and responsible way by consulting cultural communities and individuals. Joel Modiri reflects on the development of a radical democratic political theory that shifts analytical and conceptual registers in which the relationship between law and poverty is conventionally addressed and argues for the creation of a radical alternative that defatalizes the present. Stephen Peté's unconventional historical examination of the Barberton Prison Complex during the 1980s is published in two parts. The first part deals with the deaths of three prisoners and the injury of many others during a day of violence at the Barberton prison farm on 29 December 1982 and the second part examines a string of violent incidents which occurred within the Barberton Prison Complex during the course of 1983, leading to nine inmate deaths. Robbie Robinson raises the question of whether or not the constitutionally entrenched right to make decisions concerning reproduction may be limited, as the continued existence of the State may ultimately be jeopardised if the size of the population is not limited to the available levels of subsistence. Olufemi Soyejudiscusses the incapacity of low-income countries to realise the Millennium Development Goals and seeks to make a case for the adoption of a development-driven approach to law as a linchpin for the post-2015 development agenda. Carmel van Niekerk considers the constitutionality of section 294 of the Children's Act 38 of 2005, which permits commissioning parents to engage in surrogacy arrangements only in instances where they are able to provide a genetic link to their future offspring. In the only case note, Salona Lutchman evaluates the implications ofSS v Litako 2014 SACR 431 (SCA): A Clarification on Extra Curial Statements and Hearsay.
Faculty of Law, North-West University, South Africa
2015-07-31 00:00:00
Editorial
https://perjournal.co.za/article/view/495
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015)
eng
Copyright (c) 2015 Christa Rautenbach
oai:journals.assaf.org.za:article/592
2019-02-28T08:52:17Z
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Editorial
Rautenbach, Christa
http://orcid.org/0000-0001-6641-0123
This edition of PER consists of eight contributions; six articles and two notes. In the first article, Angelo Dubeanalyses the interaction amongst African States that eventually led to the development of universal jurisdiction regulations within their individual legal systems to determine if one can say that there is indeed an African signature in those legal rules. Anél Ferreira-Snyman deals with the rapid development of space technology and space flight which has rendered article IV of the Outer Space Treaty dealing with the military use of outer space outdated and in dire need of change. Moses Phooko's article investigates whether the Southern African Development Community (SADC) Tribunal has jurisdiction to deal with cases involving allegations of human rights violations. Analogous to the situation of Chinese people in South Africa who chose to be defined as "Black People" in terms of the Employment Equity Act 55 of 1998 as well as the Broad Based Economic Empowerment Act 53 of 2003, Enyinna Nwauche examines the possibility that people living under a system of customary law may change their legal system by choosing another one. The last two articles, written in two parts by Andre Louw, deals with theEmployment Equity Act 55 of 1998. In the first part, he critically examines the organising principle of the affirmative provisions of this Act and assesses if it is in line with the constitutional requirements for a legitimate affirmative action programme or measure. In the second part, he critically evaluates the Constitutional Court judgment inSouth African Police Service v Solidarity obo Barnard 2014 6 SA 123 (CC), and highlights what he thinks the biggest areas of disappointment of this judgment are within the context of South Africa’s equality jurisprudence.
In the first of two notes, Zsa-Zsa Boggenpoel analyses the Constitutional Court's use of the common law remedy ofmandament van spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC). In the second note and last contribution of this edition, Petronell Kruger discusses the case of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC), which dealt with the challenges faced by persons with disabilities relating to access to education in South Africa.
Faculty of Law, North-West University, South Africa
2015-11-24 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/592
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015)
eng
Copyright (c) 2015 Christa Rautenbach
oai:journals.assaf.org.za:article/602
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Rautenbach, Christa
http://orcid.org/0000-0001-6641-0123
This edition of PER consists of one oratio, 13 articles and one book review dealing with a variety of themes.
The first contribution is an oratio delivered by Lourens du Plessis at a colloquium hosted by the Faculty of Law, University of the Western Cape, on 2 October 2015 to celebrate his life and work, in which he aptly refers to himself as a "learned jackal for justice".
The first of the 13 articles is by Lonias Ndlovu, who uses the 2013 Supreme Court of India case of Novartis AG v Union of India to argue for legislative reform by SADC members in the granting of patents for new versions of old medicines. Secondly, Lunga Siyo and John Mubangizi consider whether the existing constitutional and legislative mechanisms provide sufficient judicial independence to South African judges, which is fundamental to democracy.Leah Ndimurwimo and Melvin Mbao trace the root causes of Burundi's systemic armed violence and argue that despite several UN Security Council Resolutions and peace agreements aimed at national reconciliation and reconstruction, mass killings and other heinous crimes remain unaddressed. In the fourth place, Marelize Marais and Jan Pretorius present a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). Phillipa King and Christine Reddell discuss the pivotal role of the public in water use rights, especially in the context of theNational Water Act 36 of 1998 in the fifth article. The difficulties surrounding the tripartite scheme of statutory, constitutional and living law in a pluralistic system such as South Africa are the focus of the article by Rita Ozoemena. She uses the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC) as an example to illustrate the difficulties experienced in trying to balance this scheme. Angela van der Berg critically discusses and describes from a legal perspective the potential and function of public-private partnerships (PPPs) between local government (municipalities) and the private sector in fulfilling the legally entrenched disaster management mandate of municipalities. André van der Walt and Sue-Mari Viljoen argue that there are sound theoretical and systemic reasons why it is necessary to keep in mind the differences between property, land rights and housing rights when analysing, interpreting and applying any of these rights in a specific constitutional text. The special procedural measures which must be considered in terms of the Consumer Protection Act 68 of 2008 in order to decide if a contract is procedurally fair are analysed by Philip Stoop in his article. Liz Lewis also scrutinises the judicial development of customary law in the case of Mayelane v Ngwenyama 2013 4 SA 415 (CC). She pleads for a judicial approach which take cognisance of the norms and values with reference to their particular context and audience instead of those embedded in international and western law. Water security, which is dealt with by Ed Couzens, remains a highly topical theme in a country such as South Africa. He explores ways to circumvent the effects of the Constitutional Court in Mazibuko v City of Johannesburg 2010 4 SA 1 (CC) with regard to the allocation of water to the poor. Izelle du Plessis discusses some of the existing opinions regarding the incorporation of double taxation agreements into the domestic law of South Africa. Last, but not least, Koos Malan deliberates on the rule of law and constitutional supremacy and comes to the conclusion that they are, from the perspective of the factual dimension of the law, more susceptible to the volatility of unpredictable changes and instability than the doctrine of the rule of law and constitutional supremacy purport them to be.
In the last contribution to this edition, Robbie Robinson reviews the book "International Law and Child Soldiers" written by Gus Waschefort and published by Hart Publishing (Oxford) in 2015. He is of the opinion that the book is asine qua non for studies of children in international law.
Faculty of Law, North-West University, South Africa
2015-11-30 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/602
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015)
eng
Copyright (c) 2015 Christa Rautenbach
oai:journals.assaf.org.za:article/618
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Editorial
Rautenbach, Christa
http://orcid.org/0000-0001-6641-0123
Editorial
This voluminous issue consists of 13 articles and 8 notes dealing with various legal topics in South Africa and abroad. The articles commences with Ig Rautenbach’s discussion of the ever-elusive concept of proportionality in the light of the text of the South African Constitution. Mmaphuti Tuba analyses the different approaches adopted for the regulation of payment systems in a variety of legislative instruments by the European Union. Phoebe Boltondeals with the thorny issue of public tenders and the extent to which bidders must comply with tender specifications and conditions. Leentjie de Jong examines present-day family arbitration and the problems experienced with it. Daleen Millard and Birgit Kuschke evaluate the insurer’s pre-contractual duties in the light of the transparency principle in insurance law. Karin Calitz deals with the question if a church can be held liable for the sexual assault of children by a priest, when the victims claim as adults, many years after the events took place. The entitlement of a non-member spouse to the member’s pension forms the focus point of Clement Marumoagae’scontribution. Mitzi Wiese reflects on the correctness of the classification of liens into enrichment and contractual liens. Frans Viljoen and Nicholas Orago analyses the importance and implications of the individual communications procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and details some of the reasons why it would be beneficial for South Africa to accede thereto. The interplay between international law and labour law in South Africa in the context of diplomatic immunity is investigated byEzette Gericke. Cornelius Kilian and Elizabeth Snyman-Van Deventer consider section 75 in the Companies Act of 1973 (or its equivalent, section 36(2) in the Companies Act of 2008) and the topic of statutory approval for an artificial decrease or increase in the number of issued shares. Annelie Laas and Trynie Boezaart give a critical analysis of the legal measures available to curb bullying in schools. Further afield, Mtendeweka Mhango discusses the development and current status of the political question doctrine in Ghana.
The first note by Roger Evans and Lienne Steyn deliberate on the seemingly contradictory outcomes of three high court judgments regarding the question of ownership of property which vests in the master of the high court by virtue of the Insolvency Act 24 of 1936. Philip Stevens also discusses recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Sieg Eiselen illustrates how the Department of Trade and Industry’s proposed amendment to the definition of “electronic signature” would undermine the key principles of functional equivalence, media neutrality and party autonomy. Luanda Hawthorne deliberates on the element of exploitation in bargaining relationships between contractual parties, as highlighted in Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). Anneliese Roos and Magda Slabbert discuss the case of Isparta v Richter 2013 6 SA 4529 (GP), which dealt with defamation in the social media on the Facebook platform. Rowena Bernard considers the case of Department of Correctional Services v Police and Prison Civil Rights Union (POPCRU) 2011 32 ILJ 2629 (LAC), where the employer's application of rules relating to the dress code of employees impacted on the religious beliefs and practices of five of the staff members. Nico Buitendag and Karin van Marle reflect on Afriforum v Malema 2011 6 SA 240 (EqC), which drew considerable attention in the media and in the public discourse. In the last contribution, James Linscott analyses F v Minister of Safety and Security 2012 1 SA 536 (CC), which dealt with the “standard” test for vicarious liability.
Editor
Christa Rautenbach
Faculty of Law, North-West University, South Africa
2014-12-30 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/618
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014)
eng
Copyright (c) 2014 Christa Rautenbach
oai:journals.assaf.org.za:article/1117
2019-02-28T08:53:01Z
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Smit, Marius
https://orcid.org/0000-0001-9707-3270
2015 Volume 18 Number 6 Special Edition
21 December 2015
Editorial
At a juncture in time when two decades have passed since the establishment of a constitutional democracy in South Africa and almost twenty years since the commencement of the South African Schools Act, this special issue reflects on the interrelationship between Education and the Law. This compilation of ten articles includes a historic look at Education Law as a field of study and reflects on a range of topical issues such as safeguarding learners against exposure to pornography, promoting safety in youth sport, the essentiality of ensuring open deliberative democratic practices during school elections, the role of educator “prosecutors” in disciplinary hearings of learners, pluralism as overriding consideration by the courts, as well as the rights to freedom of expression and life in relation to education. In many respects the multicultural plurality in most educational institutions depicts the coalface of the South African society. Legal disputes and conflicting interests in schools about equal access to quality education, promotion of African languages and non-diminishment of Afrikaans in the face of English hegemony and the accommodation of religious diversity echo the realities of life in South Africa.
Johan Beckmann’s personal account provides a historic look at the beginnings of Education Law as a field of study in South Africa expresses the hope that more South African universities will become involved in studying the field of Education Law and that a joint partnership between educationists and jurists might develop in future.
Stuart Woolman’s insightful article contends that the constitutional aim to promote pluralism as the grundnorm in South Africa explains some seemingly anomalous judgments in the education context. This plausible explanation leaves much food for thought, but also raises an array of questions. Should the paradigmatic notion of pluralism trump all other legal principles in a constitutional democracy? Are the principles of legality, justice and fairness not as important? Should pluralism underlie the adjudication process of balancing of rights and freedoms according to contextual circumstances in spite of unreasonable or unlawful state action? Have the courts not merely shown deference to an external political schema as arbiter of what "the good life" should be?
The criminalisation of exposing children or learners to pornography is particularly relevant in schools in this era of ready access to the internet and social media and is aptly explained by Susan Coetzee. Marius Smit appositely combines legal analysis of provincial regulations with qualitative research, in keeping with the methodology of social sciences, to provide evidence of undemocratic conditions and features as well as shortcomings in the system of school governing body elections. Greenfield et alia contend that a detailed and textured approach to coach education, coupled with a more nuanced judicial appreciation of the importance of sport to society (and schools) and a positive interpretation of the ‘prevailing circumstances’, may help prevent widespread expansion of liability in both rugby and sport more generally. Michael Laubscher and Willie van Vollenhoven suggest that South Africa should take cognisance of the legislative and judicial measures that have been taken in the United States and Canada to deal with the dilemmas posed by cyber bullying in schools. Erica Serfontein explores the nexus between the right to life and education in laying a foundation for the development of learners’ talents and capabilities, advancing democracy, combating unfair discrimination and eradicating of poverty in view of the essential role that the law plays to uphold these rights to attain quality of life. Based on qualitative data, Willie van Vollenhoven contends that student-educators are not able to internalise or apply the right to freedom of expression in practice. He warns that our school system is failing to develop learners as critical thinkers in the marketplace of ideas. Elda de Waal and Erika Serfontein argue that the neither the State, nor parents or educators are able to independently guide learners to responsible adulthood – a collaborative effort in accordance with the democratic principles of cooperation is required. They caution against the reciprocal tendency of parents and schools to blame each other and encourage parents to participate accountably to address learner misconduct. At times educators are required to fulfil quasi-judicial roles as evidence leaders (prosecutors) when conducting disciplinary hearings of learners. Anthony Smith highlights the difficulties experiences by these “evidence leaders” and recommends the provision of specific training in this regard.
It is notable that three contributions to this special issue on Education Law utilised education research methodology, which is grounded in social science paradigms, in conjunction with legal analysis, based on law research methodology. This accentuates the interdisciplinary relationship between education and the law and promotes the epistemological enrichment of legal theory. Although the jurisprudence of the field of Education Law is fairly modest, the implications of court decisions on educational issues have a profound effect on the South African society, firstly because schools are microcosms of society, secondly because democratic (or undemocratic) practices in educational institutions leave indelible imprints on the youth that will eventually find expression in the life of a nation, and finally because the success (or failure) of an education system will ultimately determine the level of progress and economic destiny of the nation.
Special Edition Editor
Prof Marius Smit
Faculty of Law, North-West University, South Africa
2015-12-21 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/1117
Potchefstroom Electronic Law Journal; Vol. 18 No. 6 (2015): Special Edition
eng
Copyright (c) 2015 Rieette Venter, Marius Smit
oai:journals.assaf.org.za:article/1135
2019-02-28T08:53:17Z
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Rautenbach, Christa
North-West University (Potchefstroom Campus) http://orcid.org/0000-0001-6641-0123
The last general issue of 2016 boasts 11 contributions dealing with a variety of issues. Chrizell Chürr compares some of the challenges experienced in the South African educational system with the situation in the German system to propose alternatives for South Africa. Deon Erasmus and Angus Hornigold discuss the emergence of a different kind of model of litigation in South African law, which they refer to as "court supervised institutional transformation". They also investigate the feasibility of importing something like the American special master into South African law to assist with the implementation of court sentences. Wian Erlank's first contribution re-evaluates traditional conceptualisations of property rights in space, especially against the background of objects that are deemed to be res nullius (things belonging to nobody) as well as the theory of terra nullius (land belonging to nobody). Wian Erlank's second contribution also deals with property but this time he deliberates on the relevance and meaning of virtual property in modern society. Evode Kayitana moves further abroad to the International Criminal Court (ICC) and the question of whether and to what extent foreign State officials can plead immunity when they are accused of international crimes before South African courts. Drawing an analogy with the American Bald and Golden Eagle Protection Act of 1940, Johann Knobel argues in favour of extending the legal protection afforded to rare bird species to more common species to prevent the use of the excuse that a protected species was mistaken as a common species and therefore mistakenly killed. Tumo Maloka two high court cases which dealt with the question whether a person with previous convictions could be considered a "fit and proper person" to be admitted to the roll of attorneys. Lindiwe Maqutu charts the narrative of judicial influence on the diminishing credibility of the National Prosecuting Authority, using selected cases from the past, including those involving the South African president, Jacob Zuma. Nina Mollema gives a comparative narrative of sex offender registration in South Africa, the United States and the United Kingdom and comes to the conclusion that a sex offender register would not necessarily prevent the commission of sexual offences in South Africa. Marius Olivier and Avinash Govindjee reflect on the shortcomings and deficiencies of the proposed amendments to the Unemployment Insurance Act 63 of 2001, introduced via the provisions of the Unemployment Insurance Amendment Bill of 2015. Riette du Plessis reviews the appropriateness of some of the assessment models available in Clinical Legal Education courses within a South African environment and, finally, Sarah Fick and Paul van der Merwe critique the interpretation of the "cap provision" in section 17(4)(c) of the Road Accident Fund Act 56 of 1998 in Road Accident Fund v Sweatman (162/2014) [2015] ZASCA 22 (20 March 2015).
Faculty of Law, North-West University, South Africa
2015-12-30 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/1135
Potchefstroom Electronic Law Journal; Vol. 18 No. 7 (2015)
eng
Copyright (c) 2015 Christa Rautenbach
oai:journals.assaf.org.za:article/1287
2019-02-28T13:21:43Z
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Editorial
Rautenbach, Christa
North-West University (Potchefstroom Campus) http://orcid.org/0000-0001-6641-0123
When PER (acronym for the Afrikaans journal title Potchefstroomse Elektroniese Regstydskrif, but also suggesting the Latin connotations of causation, durability and facilitation) first appeared in November 1998, there was an awareness of the incongruity of the notion of a law journal not being published in tangible form by an established law publisher on the one hand, and on the other of the inevitability of things to come. The editorial stated:
"In this era of an unstoppable increase in information on offer and improved means of communication, it is inevitable that the exchange of juristic ideas should develop and escalate electronically, by internet. A problem already challenging the time starved legal user of the electronic medium, is to separate the wheat from the chaff. For many people it is relatively easy to publish something on the Web. It is, however, just as demanding to produce quality in this manner as through any other medium, be it primitive or avant garde."
From the outset the Potchefstroomse Elektroniese Regstydskrif (PER) / Potchefstroom Electronic Law Journal (PELJ) was focused on maintaining high editorial standards, producing material for legal scholars worth reading. Probably still the most widely cited contribution to PER/PELJ (on Ubuntu by Justice Yvonne Mokgoro) appeared in the first volume. Papers delivered (referred to as orationes) by prominent scholars and judges are often published in PER/PELJ, and double-blind peer review practices are maintained throughout, except for the orationes.
From time to time guest editors are invited to produce single or special editions. Renowned South African and foreign scholars are regularly approached to review submissions to PER/PELJ, and the editorial board is composed of prominent internationally recognised academics and judges.
Since 2003, PER/PELJ has taken its place among a range of renowned internationally accredited journals, currently listed and indexed inter alia by IBSS, DOAJ, SSRN, AJOL, Boloka, SciELO, HeinOnline, and Web of Knowledge.
In 2016, PER/PELJ migrated to this online journal system, and contributions accepted for publication are now published continuously as soon as the finally edited version becomes available.
We are entirely grateful to our authors, reviewers and readers who have always believed in the scholarly quality of the contributions. You have been instrumental in the phenomenal growth of the journal over the last 18 years.
We are proud to announce the first contribution of 2016 entitled “Remedial Principles and Meaningful Engagement in Education Rights Disputes” by the renowned author, Sandy Liebenberg, who is a distinguished professor and HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch, South Africa.
Editor-in-Chief: Christa Rautenbach
and
Founding Editor: Francois Venter
Faculty of Law, North-West University, South Africa
2016-01-17 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/1287
Potchefstroom Electronic Law Journal; Vol. 19 (2016)
eng
Copyright (c) 2016 Christa Rautenbach
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Rautenbach, Christa
NWU
Faculty of Law, North-West University, South Africa
2014-12-19 00:00:00
Editorial
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https://perjournal.co.za/article/view/2161
Potchefstroom Electronic Law Journal; Vol. 17 No. 5 (2014)
eng
Copyright (c) 2017 Christa Rautenbach
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Rautenbach, Christa
North-West Unicersity(Potchfestroom Campus)
Editorial
The first 11 articles in the first issue of 2014 deal with global legal topics ranging from outer space to domestic South African matters and legal challenges in other African countries, such as Uganda, Nigeria and Zimbabwe. Anél Ferreira-Snyman discusses legal challenges relating to the commercial use of outer space, with specific reference to space tourism. She points out that the current legal framework is outdated and no longer deals adequately with the rapidly developing space tourism industry. Further away from the moon, although it deals with creations of the mind and is just as mysterious for the average person, is the contribution of André van der Walt and Richard Shay, which analyses the South African Constitutional Court's treatment of intellectual property. They focus on the methodology that the Court has formulated to assess if state interference complies with constitutional provisions to determine if state intervention into property interests has been legitimate. The third contribution, by Joel Baloyi, also deals with a creation of the mind, namely copyright. He attempts through a comparative analysis to demystify the role of copyright as a tool for economic development in Africa and criticises the stifling effect the transferability principle has on the effectiveness of copyright in certain African countries. Bradley Slade discusses the differences between the concepts "public purpose" and "public interest" in the context of third party transfers as a result of property being expropriated for the realisation of public purposes in the fourth contribution. The influence of the Constitution of South Africa, 1996 on organ transplants is the topic of the fifth contribution, by Debbie Labuschagne and Pieter Carstens. They come to the conclusion that the South African government has failed to provide an effective legal framework to relieve the shortage of human organs available for transplantation. Sixthly, Lize Mills discusses recently proposed regulations prohibiting the advertising and promotion of infant formulae and other products marketed as being suitable for infants or young children with the purpose of promoting breast-feeding. The last five articles move further afield and deal with legal issues elsewhere in Africa. Dana van der Merwe gives a comparative overview of the relationship between digital information in certain legal fields in South Africa and Uganda. Nazreen Shaik-Premanov examines Zimbabwe's Marange conflict diamond situation and Lovemore Chiduza analyses the Zimbabwean constitutional provisions on judicial independence. Peter Obutte scrutinises ICT laws in Nigeria and the last two authors, Serges Kamga and Ogechukwu Ajoku, reflect on addressing human rights violations by extractive industries in both South Africa and Nigeria.
Four notes are also published in this issue. The first one is an overview article by Christa Rautenbach dealing with the modern-day impact of cultural and religious diversity as reflected in the book on "Managing Family Justice in Diverse Societies". The other four notes are case discussions. The first one is a discussion of the case of Government of the Republic of Zimbabwe v Louis Karel Fick by Erika de Wet. The second one is a discussion of the case of Le Sueur v eThekwini Municipality by Warren Freedman, and the last one is a discussion of the case of Apollo Tyres v South Africa (Pty) Ltd v CCMA by Shamier Ebrahim.
Faculty of Law, North-West University, South Africa
2014-04-09 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2295
Potchefstroom Electronic Law Journal; Vol. 17 No. 1 (2014)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2296
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Editorial
Erlank, Dr Wian
North-West University(Potchefstroom Campus) https://orcid.org/0000-0001-7796-1254
On Friday 27th July 2012 the conference on the "Green Paper on Land Reform: Challenges and Opportunities" was held at the Hakunamatata Estate in Muldersdrift. The conference was a joint project by the Konrad Adenauer Foundation (KAS) and the Faculty of Law, North-West University. While the main focus of the conference was on the specific issues raised by the Green Paper on Land Reform of 2011, it also addressed current and contemporary issues relating to the Land Reform issue as experienced in South Africa.
Papers were delivered on various aspects of land reform relating to or arising from the Green Paper on Land Reform, 2011. The programme included a large number of excellent and thought provoking papers as well as a number of panel discussions that resulted in enthusiastic audience participation. Of these, the following papers and presentations were collected, evaluated and published in this special edition of PER. The first contribution by Wian Erlank (North-West University) gives an overview and discusses the challenges the Green Paper on Land Reform bring to the fore. It sets the stage for the publication at large. This is followed by Juanita Pienaar (University of Stellenbosch) who deliberates on what she calles the “mechanics of intervention” and the Green Paper on Land Reform. Henk Kloppers and Gerrit Pienaar (North West University) gives a historical context of land reform in South Africa and early policies; and Henk Kloppers then considers Corporate Social Responsibility (CSR) in the context of land reform. He is followed by Hanri Mostert's (University of Cape Town) contribution on land as a 'National Asset' under the Constitution and what this system change envisaged by the 2011 Green Paper on Land Policy means for property under the Constitution. Elmien du Plessis (University of Johannesburg) article on the lack of direction on compensation for expropriation in the 2011 Green Paper on Land Reform. This special edition ends with Motsepe Matlala, the President of the National African Farmers Union gave an illuminating oratio on the opportunities and challenges of the 2011 Green Paper on Land Reform for the National African Farmers Union (NAFU SA).
The timing of this edition is fortuitous, since a follow-up to this conference was held at Hakunamatata, Muldersdrift on 19 and 20 June 2014 with the specific focus on Land Reform and Food Security.
More on the theme.
The contributions contained in this special edition provide an extensive overview of land reform, especially in their introductory sections - before delving into the more technical aspects. However, a very brief note on the issue of Land Reform in South Africa might be beneficial for foreign readers. As in most other areas of the world, ownership of and access to land is an important issue in South Africa. This is especially topical in South Africa due to the fact that the racial segregation policies and laws of the past had the effect of removing people from their land, of restricting their access to land, and also in most instances of prohibiting their ownership of land. Ever since the abolition of "apartheid" and the introduction of the new, democratic dispensation, the initiative of "land reform" has been identified as requiring actively promotion in order to address these injustices of the past. Mandated by the Constitution and implemented through legislation, the South African Land Reform Programme has seen many developments over the past few years. While it is clear that much has been done to address these issues, it is also clear that current land reform strategies have not have the intended effect and would need to be adapted before this important programme is resumed. The Green Paper on Land Reform of 2011 is one of the instruments that has been used to create new interest and public engagement both in Land Reform, the development of better public policy and - eventually – of legislation. In the context of this brief description of the existing situation, this issue focusses on the most pressing aspects of land reform at the moment.
Faculty of Law, North-West University, South Africa
2014-05-27 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2296
Potchefstroom Electronic Law Journal; Vol 17, No 2 (2014)
eng
Copyright (c) 2017 Dr Wian Erlank
oai:journals.assaf.org.za:article/2297
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Editorial
Rautenbach, Christa
North-West Universiy(Potchefstroom Campus)
The third issue of PER contains ten articles and one case note on a variety of themes. Shaun de Freitas shares his views on improper irreligious proselytism in religious rights and freedoms jurisprudence within a public school context and introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other. Yvette Joubert and Juanitta Calitz analyse the role of the so-called private examinations in South African insolvency law and deal with the question of whether or not section 417 of the Insolvency Act 24 of 1936 is adequately and effectively framed in order to fulfil its intended purpose in South African law. Howard Chitimira gives a historical overview of the regulation of market abuse in South Africa. He concludes his contribution with a discussion by isolating certain flaws in the previous market abuse laws that were re-incorporated into the current South African market abuse legislation and makes recommendations in that regard. Juanita Jamneck discusses the contemporary meaning of the word "spouse" and the recognition of the family as an important social institution in the light of the provisions of the Intestate Succession Act 81 of 1987. Shannon Bosch reviews the scope and nature of "direct participation in hostilities" in international humanitarian law in the light of the Interpretive Guide on the Notion of Direct Participation in Hostilities issued by the International Committee for the Red Cross. The primary objective of the article by Vinesh Basdeo is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. Eddie Hurter and Tana Pistorius examine the new .Africa Top Level Domain - an Africa initiative to ensure that Africa gets its rightful place in the global network. Geo Quinot tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. Thino Bekker discusses the scope and application of the integration rule in the South African law of contract and deals with the question if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. Yeukai Mupangavanhu discusses the case of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) in the light of the exemption clauses in the Consumer Protection Act 68 of 2008 (CPA). The case note, which is also the final contribution, by Martha Radebe evaluates the unconstitutional practices of the Judicial Service Commission under the guise of judicial transformation as they came to the fore in the case of the Cape Bar Council v Judicial Service Commission [2012] 2 ALL 143 (WCC).
Faculty of Law, North-West University, South Africa
2014-08-28 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2297
Potchefstroom Electronic Law Journal; Vol. 17 No. 3 (2014)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2298
2019-02-28T08:50:14Z
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Editorial
Rautenbach, Christa
North-West University(Potchefstroom Campus)
This edition consists of 15 contributions – 12 articles and three case notes. In the first article, Janke Strydom and Sue-Mari Viljoen discuss the phenomenon where inner-city buildings in South Africa are unlawfully occupied, which has led to a number of legal disputes between occupiers and individual landowners. They propose measures analogous to those in England and the Netherlands to be added to the existing statutory powers of the local authorities to assist in resolving the disputes. Second, Tapiwa Warikandwa and Patrick Osode deal with the challenges the WTOs is faced with in balancing the rights of a sovereign power to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. Third, Andra le Roux-Kemp and Elsie Burger give a comparative perspective on some of the issues associated with litigating cases where the Shaken Baby Syndrome is the subject matter. Their focus is on the case law in the United States and United Kingdom. Fourth, Fatima Osman deals with the thorny issue of headscarves in South Africa, France, Turkey and Switzerland. She focuses on the reasons for the ban against their wearing and asks if the ban can be justified in the light of the human rights guaranteed to those individuals wanting to wear them. Fifth, Geo Quinot and SP (Fanus) van Tonder argue in favour of capstone courses to address some of the challenges facing legal education in general and the inadequacies of the LLB curriculum. Rolien Roos, in the sixth article, sets out to determine whether law can be regarded as a science which could be studied. She refers to the scholarly works of philosophers such as Dooyeweerd, Stafleu and Strauss and comes to the conclusion that the answer is all but straight forward. In the seventh article, Caiphas Soyapi considers the highly controversial provisions of the Traditional Courts Bill in a comparative context and recommends that the framers of the Bill should consider the situation in other jurisdictions in order to deal with some of the issues with the Bill. In the eight spot, Gerrit Ferreira and Anél Ferreira-Snyman examine the dichotomy that is created between the monist and dualist approach followed by the incorporation of international law into municipal law in the light of decisions of the South African Constitutional Court and the European Court of Justice. In the ninth article, Magda Slabbert and Darren Boome investigate the prospects of a convicted criminal who wants to become a lawyer, and in the tenth article Raheel Ahmed considers the role of “contributory intent” as a defence limiting delictual liability. In the second-last article Kananelo Mosito sets out to provide the reader with an understanding of the legal situation in Lesotho pertaining to social security and protection. Last but not least, Tamara Cohen and Lehlohonolo Matee give a comparative overview of the public servants’ right to strike in Lesotho, Botswana and South Africa.
The first case note is by Tracy-Lynn Humby, who deals with the question of whether or not municipalities have the power to legislate on environmental issues such as biodiversity and conservation, as examined in the case of Le Sueur v Ethekwini Municipality in the KwaZulu-Natal High Court. The second note, by Johan Beukes and Christiaan Swart, discusses the case of Peel v Hamon J&C Engineering (Pty) Ltd, which deals with the remedy provided for in section 163 of the Companies Act (the oppression remedy). The last note is by Helen Kruuse and Julia Sloth-Nielsen, and debates the implications of Mayelane v Ngwenyama
Faculty of Law, North-West University, South Africa
2014-11-14 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2298
Potchefstroom Electronic Law Journal; Vol. 17 No. 4 (2014)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2330
2019-02-28T08:47:13Z
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Editorial
Rautenbach, Christa
North West University(Potchefstroom Campus)
The first issue of 2013 contains fifteen contributions dealing with a potpourri of themes. The first contribution is an oratio presented by the retired Dean of the Faculty of Law of the NWU and former editor of PER, Francois Venter, during his exodus in October 2012. He gave his presentation in his mother tongue, Afrikaans, and asks the question if one may assume that being a professor entails belonging to a profession, in other words, an academic profession. The second oratio was a keynote speech delivered by Torsten Stein, the Director of the Institute of European Studies and holder of the chair for European law and European Public Law at Saarland University, Germany. He delivered his speech during November 2012 at the 3rdHuman Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, which was held by the Faculty of Law (NWU, Potchefstroom Campus) in collaboration with the Konrad-Adenauer Foundation. He shared some thoughts about the nature, development and implementation of socio-economic rights within an international and European setting. The next nine articles make up the bulk of this issue. The first one is by Babatunde Fagbayibo, who gives an analytical overview of the common problems affecting supranational attempts in Africa. He argues that Africa's efforts to solidify its unity should be geared towards building on the experiences of past and present experiments at the sub-regional level. Samantha Goosen discusses the very thorny issue of battered women and the elements of self-defence if she has to stand trial for killing her husband. Recent developments in the area of pro bono legal services are the heart of Dave Holness' article. He focuses on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. Henk Kloppers discusses the very topical issue of corporate social responsibility. He gives an overview of the social and ethics committee created in terms of the Companies Act 71 of 2008 as a potential driver of corporate social responsibility. The always newsworthy theme of HIV/AIDS and the question of whether to disclose or not to disclose one's status forms the focal point of Andra le Roux-Kemp's contribution. Chucks Okpaluba gives an overview of South African and Commonwealth decisions dealing with the issue of reasonable and probable cause in the law of malicious prosecution. The never-ending problem of language diversity once again comes to the fore in the article by Loot Pretorius. He asks the question if the recently adopted Use of Official Languages Act 12 of 2012 complies with the normative instructions of the Constitution of the Republic of South Africa, 1996. In his second essay on the Child Justice Act 75 of 2008, Stephan Terblanche deals with a number of procedural issues related to the sentencing of child offenders. The last article, which is by Bonnie Venter, deals with the ethical question of whether the payment of kidney donors could be regarded as constitutionally acceptable or not. In the first of five notes, Nqobizwe Ngema asks if the African custom of theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) has an impact on the custody of children in the context of the best interest of the child. The central question Phazha Ngandwe asks is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international and regional integration objectives of the free movement of people. Mzukisi Njotini's note discusses the adequacy of South Africa's measures designed to protect critical information infrastructures. In the second last note, Anthea Wagener considers the practice of South African motor-vehicle insurers of using gender as a rating variable to classify risks into certain classes, thereby determining insurance premiums, and asks if this practice boils down to unfair discrimination. The final note by Anri Botes deals with the history of labour hire in our neighbouring country, Namibia.
Faculty of Law, North-West University, South Africa
2013-04-23 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2330
Potchefstroom Electronic Law Journal; Vol. 16 No. 1 (2013)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2378
2019-02-28T08:47:54Z
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Editorial
Rautenbach, Christa
North West University(Potchefstroom Campus)
The third issue of 2013 contains 12 contributions ranging from two orationes, nine articles and one note. The first oratio is an address delivered by Karthy Govender at the Law Faculty, University of Michigan, to commemorate the 2013 Martin Luther King Day at the Law Faculty, University of Michigan. He draws parallels between King, Ghandhi and Mandela and discusses the influence they all had in the development of South Africa into a democratic state. In the second oratio Mike van Graan airs his views on the Revised White Paper on Arts, Culture and Heritage of 2013, published by the Department of Arts and Culture. His main concern is the haste in which the white paper is being taken through the process, and he cautions against the adoption of a far-reaching policy which has not been thoroughly considered
Faculty of Law, North-West University, South Africa
2013-08-29 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2378
Potchefstroom Electronic Law Journal; Vol. 16 No. 3 (2013)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2427
2019-02-28T08:48:09Z
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Editorial
Rautenbach, Christa
North West University(Potchefstroom Campus)
This edition of PER consists of eight articles, four notes and two book reviews covering a range of topics. The first article is by Oliver Fuo, a postgraduate student of the North-West University (Potchefstroom Campus). His contribution deals with the status of executive policies and the basis for their judicial enforcement in a constitutional and socio-economic context. He demonstrates that "executive" policies may be perceived to have the force of law, especially where their enforcement may be imperative for the realisation of socio-economic rights. Secondly, Ig Rautenbach of the University of Johannesburg considers empirical data on the effectiveness of the Constitutional Court during the period 1995 to 2012. He focuses on the following three questions: "How did the cases reach the court", "why did the court refuse to consider some of them", and "how often did the court invalidate laws and actions". In the third article, Magda Slabbert and Hendrik Pienaar, follows a multi-disciplinary approach to discuss the legal position of the locum tenens that is often used by medical practitioners in private practice. They recommend that a locum tenens be appointed as an independent contractor rather than an employee, and argues that the onus to ensure that he or she is registered and fit to practice rests on the principal. The fourth article by Carika Keuler deals with the "pay now, argue later" rule in terms of the Tax Administration Act 28 of 2011. She is of the opinion that the Act fails to address the imbalance between the duties of the South African Revenue Services and the right of the taxpayer to access the courts. JC Knobel, the author of the fifth article, gives an overview of the conservation status of eagles in South Africa. He discusses the existing legal framework and makes a number of recommendations to improve their legal status. Two authors, Laurence Juma and James Tsabora, both from Rhodes University, discuss the possibility of South Africa enacting a new law regulating private military and/or security companies, which they refer to as PMSC's. The seventh article by Johan Kruger and Clarence Tshoose gives a South African perspective on the impact of the Labour Relations Act 66 of 1995 on minority trade unions. In the eight place, Dave Holness offers an analysis of compulsory "live client" clinical legal education as part of the LLB course as a means of improving access to justice for the indigent.
Faculty of Law, North-West University, South Africa
2013-12-10 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2427
Potchefstroom Electronic Law Journal; Vol. 16 No. 4 (2013)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2450
2019-02-28T08:48:28Z
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10.17159/1727-3781/2013/v16i5a2450
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Editorial
Rautenbach, Christa
North West University(Potchefstroom Campus)
The last issue of 2013 consists of fourteen contributions dealing with a potpourri of topics. The first two articles are both by the same author. In the first one, André Louw addresses the recent, sometimes deplorable conduct of intellectual property (or IP) lawyers, and in the second one, André Louw explores the proper role and meaning of good faith (or bona fides) in contract law, and the approach of our courts to the application of this principle in individual cases involving claims of unfairness and the like. The third article, by Rufaro Mavunga, critically assesses the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999. Nicholas Orago, in the fourth article, discusses socio-economic rights in Kenya and proposes that if the entrenched socio-economic rights are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of socio-economic rights disputes. The fifth article, by Oliver Fuo, explores and critically investigates the relevance and potential of integrated development planning in contributing towards the achievement of social justice in South Africa. Next, Michaela Young discusses the fate of informal fishers in the context of the Policy for the Small-Scale Fisheries Sector in South Africa. The second-last article, by Hermanus van der Merwe, provides a historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda, before he continues to examine it in contemporary South African law. The last article, by Chuma Himonga, Max Taylor and Anne Pope, explores the scope and content of the ever elusive concept of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape.
Faculty of Law, North-West University, South Africa
2013-12-30 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2450
Potchefstroom Electronic Law Journal; Vol. 16 No. 5 (2013)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2471
2019-02-28T08:45:22Z
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10.17159/1727-3781/2012/v15i1a2471
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Editorial
Venter, Francois
North West University(Potchefstroom Campus)
This issue contains various contributions on the themes of traditional African culture, the law relating to children and juveniles, the state's social responsibilities, labour law and one on legal education.
In August 2011 Advocate Joyce Maluleke, Director in the Gender Directorate of the South African Department of Justice and Constitutional Development addressed the Annual General Conference of the South African Chapter of the International Association of Women Judges held in Potchefstroom on the dangers of harmful traditional practices such as early and forced marriages, virginity testing, widow's rituals, levirate and sororate unions, female genital mutilation, breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting. Although she considers respect for tradition, culture and customs to be part of the South African identity, she argues that cultural practices should be rooted in respect for human rights, democracy and equality. We publish her paper here as an oratio.
Faculty of Law, North-West University, South Africa
2012-03-29 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2471
Potchefstroom Electronic Law Journal; Vol. 15 No. 1 (2012)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2515
2019-02-28T08:46:24Z
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10.17159/1727-3781/2012/v15i4a2515
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Editorial
Rautenbach, Christa
North West University(Potchefstroom Campus)
This issue contains six diverse contributions on topics ranging from prostitution to rent control, unfair dismissals, civil liberties in Zimbabwe, prospecting rights and insolvency issues. The first article is from Sarah Pudifin (pupil advocate at the KwaZulu-Natal Bar) and Shannon Bosch (senior lecturer in law at the University KwaZulu-Natal), who examine countervailing South African public opinion on the subject of prostitution and identify the factors which might influence these attitudes. Sue-Mari Maass of the University of South Africa in the second article gives a comparative analysis of rent control measures imposed in various jurisdictions (South Africa, New York and England) to provide tenure protection for vulnerable tenants. The third article is from Stella Vettori, also of the University of South Africa, who discusses the role of human dignity in the assessment of fair compensation for unfair dismissals. The authors of the fourth article are Jephias Mapuva and Loveness Muyengwa-Mapuva. They discuss key legislation within the areas of media and access to information, individual rights and freedoms, as well as legislation pertaining to the conduct of elections in Zimbabwe. The issue concludes with two case notes. The first one is from Tracy-Lynn Humby of the University of the Witwatersrand. She writes about the conflict between two empowerment firms, Bengwenyama Minerals (the investment vehicle of the Bengwenyama-ye-Maswazi community) and Genorah Resources, which culminated in three judgments, termed the "Bengwenyama trilogy" by the author. Her focus is on the right of a community to prospect or mine and the protection thereof during mining activities. The second note, written by Lienne Steyn of the University of KwaZulu-Natal, considers case law which deals with the interface between the National Credit Act 34 of 2005 and the Insolvency Act 24 of 1936. The question in all three cases she discusses was whether or not a debtor's application for debt review constitutes an act of insolvency which can be relied upon by a debtor in an application for the compulsory
Faculty of Law, North-West University, South Africa
2012-11-08 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2515
Potchefstroom Electronic Law Journal; Vol. 15 No. 4 (2012)
eng
Copyright (c) 2017 Christa Rautenbach
oai:journals.assaf.org.za:article/2556
2019-02-28T08:42:35Z
per:ED
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1727-3781
10.17159/1727-3781/2011/v14i1a2556
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Editorial
Venter, Francois
North West University(Potchefstroom Campus)
A wide range of unrelated topics are addressed in five articles and three notes published in this issue.
• The first article, contributed by Sieg Eiselen of UNISA, deals comparatively with the difficulties of an appropriate interpretation of the UN Convention on Contracts for the International Sale of Goods (CISG) regarding standard terms in international contracts of sale. Eiselen subscribes to an approach according to which a clear incorporation clause in the contract is considered to be sufficient for the effective incorporation of standard terms.
Faculty of Law, North-West University, South Africa
2011-04-19 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2556
Potchefstroom Electronic Law Journal; Vol. 14 No. 1 (2011)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2570
2019-02-28T08:42:56Z
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10.17159/1727-3781/2011/v14i2a2570
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Editorial
Venter, Francois
North West University(Potchefstroom Campus)
This edition opens with a discussion by Loma Steynberg of UNISA of the challenges attending judicial decision-making in the award of delictual damages based on actuarial calculations.
Faculty of Law, North-West University, South Africa
2011-05-30 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2570
Potchefstroom Electronic Law Journal; Vol. 14 No. 2 (2011)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2580
2019-02-28T08:43:25Z
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1727-3781
10.17159/1727-3781/2011/v14i3a2580
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Editorial
Venter, Francois
North West University(Potchefstroom Campus)
On 22 and 23 April 2010 the NWU (Potchefstroom Campus) Faculty of Law hosted a colloquium in collaboration with and sponsored by the Konrad-Adenauer Stiftung on the theme Good Governance in Land Tenure. In this issue we publish a selection of edited and reworked papers presented during the colloquium. A foreword to this joint issue of the Faculty and KAS by the Resident Representative of KAS in South Africa, Dr Werner Bohler, opens the discussion of a topic of global and local significance.
Faculty of Law, North-West University, South Africa
2011-06-20 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2580
Potchefstroom Electronic Law Journal; Vol. 14 No. 3 (2011)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2593
2019-02-28T08:43:47Z
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1727-3781
10.17159/1727-3781/2011/v14i4a2593
doi
dc
Editorial
Venter, Francois
University of the Western Cape
This edition, one of the most voluminous to date, opens with an oratio by IT Cohen Professor of International Law and Human Rights, Emory University School of Law, Johan van der Vyver. The paper was delivered in the HL Swanepoel series of lectures on 26 May in Potchefstroom. In a well documented paper covering historical perspectives on the right to self-determination, the definition thereof and limitations thereupon, Van der Vyver concludes that the "[d]rafters of the South African Constitution rejected segregation of rival ethnic, religious and linguistic communities, as well as the promotion of cultural, religious or linguistic homogeneity within our nation, as a means of counteracting group-related tensions in the country's social construct. . . . The new constitutional dispensation accordingly seeks to promote pride in one's group identities." He also points out that "[p]luralism, tolerance and broadmindedness have been singled out by the European Court of Human Rights as indispensable components of a democratic society." A link to video material of the lecture is also included.
Faculty of Law, North-West University, South Africa
2011-07-15 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2593
Potchefstroom Electronic Law Journal; Vol. 14 No. 4 (2011)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2604
2019-02-28T08:44:06Z
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1727-3781
10.17159/1727-3781/2011/v14i5a2604
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
• This issue opens with an oratio by one of South Africa's most senior judges, the Honourable LTC Harms who suggests that the South African criminal justice system should learn from the experience of international criminal courts regarding a merger of elements from accusatorial and inquisitorial systems.
• Shaun de Freitas and Georgia Myburgh of the University of the Free State argue that, if the protection of being human serves as the common denominator in the international discussion of human rights, and if human rights are deeply inclusive, however culturally and historically diverse, then failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due.
• Roger Evans of UNISA contends that modern society, socio-political developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates.
Faculty of Law, North-West University, South Africa
2011-08-31 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2604
Potchefstroom Electronic Law Journal; Vol. 14 No. 5 (2011)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2614
2019-02-28T08:44:23Z
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1727-3781
10.17159/1727-3781/2011/v14i6a2614
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
The papers published in this special edition on law and education were written on the initiative of the South African Education Law Association (SAELA).
JP Rossouw of the Faculty of Education Sciences of the North-West University (Potchefstroom Campus) and current chairperson of SAELA and Wilna Keet (attorney of Pratt Luyt & De Lange, Polokwane) investigate the delictual liability of educator-coaches in their combined functions as coaches, organisers of sport events, referees and sport officials in the context of the security of learner participants.
Faculty of Law, North-West University, South Africa
2011-10-31 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2614
Potchefstroom Electronic Law Journal; Vol. 14 No. 6 (2011)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2626
2019-02-28T08:44:42Z
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1727-3781
10.17159/1727-3781/2011/v14i7a2626
doi
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Editorial
Venter, Francois
North West University(Potchefstroom Campus)
On 13 August 2011 Deputy Chief Justice Dikgang Moseneke delivered the keynote address at the Annual General Conference of the South African Chapter of the International Association of Women Judges held on the Potchefstroom Campus of the North-West University. We are pleased to open this edition with this address in which he concluded: "We need judges who are needs driven and who are determined to vindicate rights of aggrieved litigants impartially and without fear or favour. That deep instinct of fairness which seems to abound in women would be a great asset to our judiciary."
Faculty of Law, North-West University, South Africa
2011-12-14 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2626
Potchefstroom Electronic Law Journal; Vol. 14 No. 7 (2011)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2648
2019-02-28T08:40:42Z
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"170615 2017 eng "
1727-3781
10.17159/1727-3781/2010/v13i2a2648
doi
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Editorial
Venter, Francois
North West University(Potchefstroom Campus)
Former State President F W de Klerk, an alumnus of Potchefstroom, delivered the seventh lecture in a series bearing his name last year in October. Some of the other lectures in the series were published in PER (2004(2), 2005(1), 2009(2). We are proud to publish Mr de Klerk's presentation in this issue as an oratio in which he stated that "the Constitution is the indispensable basis of our national unity and our best and abiding hope for continued freedom, prosperity and stability," but simultaneously felt constrained to identify seven threats to which the Constitution was exposed
Faculty of Law, North-West University, South Africa
2010-08-27 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2648
Potchefstroom Electronic Law Journal; Vol. 13 No. 2 (2010)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2697
2019-02-28T08:40:59Z
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"170619 2017 eng "
1727-3781
10.17159/1727-3781/2010/v13i3a2697
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
In this extraordinarily voluminous edition we offer 2 orationes, 8 articles and 3 notes.
Oratio
• The first oratio is by Josef GA Krger, QC. Partner in Borden Ladner Gervais LLP, Calgary, Canada, who spoke in August 2010 in Potchefstroom, giving an expert exposition of the Canadian law on the restructuring of insolvent corporations in Canada.
• The second oratio is by Werner Menski of the School of Law, University of London, speaking in June this year at the University of London in a Religare Conference. Showing his distaste for fuzzy law, he argues that "moderate secularism" is not merely another fuzzy concept, but it is "super-fuzzy", and that lawyers claiming to love certainty "have a tendency to sit in judgment over matters and even pre-judge things they know little about, including legal pluralism" leading to much irritation.
Faculty of Law, North-West University, South Africa
2010-12-03 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2697
Potchefstroom Electronic Law Journal; Vol. 13 No. 3 (2010)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2706
2019-02-28T08:41:22Z
per:ED
driver
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"170619 2017 eng "
1727-3781
10.17159/1727-3781/2010/v13i4a2706
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
This edition is wholly composed of selected and peer-reviewed contributions made in a specialist scholarly conference on Traditional Knowledge in Legal Context held at Potchefstroom on 17-18 March 2009 at Potchefstroom.
Oratio
• Andre van der Merwe a Senior Director of DM Kisch Incorporated and practising Intellectual and Patent attorney, delivered the key-note address (here published as an oratio), posing the question whether traditional knowledge, for which there is no unambiguous definition, can effectively be protected under a single umbrella." After considering the matter from inter alia historical, philosophical and legal perspectives, he suggests a solution based on a multi-disciplinary approach.
Faculty of Law, North-West University, South Africa
2010-12-10 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2706
Potchefstroom Electronic Law Journal; Vol. 13 No. 4 (2010)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2714
2019-02-28T08:41:44Z
per:ED
driver
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"170619 2017 eng "
1727-3781
10.17159/1727-3781/2010/v13i5a2714
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
• This issue deals with a selection of topics of environmental law. As it should be clear from the short tribute written by Margaret Beukes, the issue is devoted to Professor Elmien Bray, for many years a force in the emergence of South African environmental law.
• Jonathan Verschuuren of Tilburg University expertly comments on the Dutch Crisis and Recovery Act, showing clearly why it is such a controversial piece of legislation: balancing economic recovery with sustainable development, sound principles of law, justice and crisis management is shown to be a very hard result to achieve by means of legislation.
Faculty of Law, North-West University, South Africa
2010-12-30 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2714
Potchefstroom Electronic Law Journal; Vol. 13 No. 5 (2010)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2724
2019-02-28T08:37:35Z
per:ED
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"170626 2017 eng "
1727-3781
10.17159/1727-3781/2009/v12i1a2724
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
In this issue the nexus between labour relations and electronic privacy, affirmative action in India, intercountry adoption of children, the award of costs in public interest litigation and the legal uncertainties surrounding liability for injuries of student actors are the themes of the contributions.
Faculty of Law, North-West University, South Africa
2009-03-26 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2724
Potchefstroom Electronic Law Journal; Vol. 12 No. 1 (2009)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2738
2019-02-28T08:38:44Z
per:ED
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"170626 2017 eng "
1727-3781
10.17159/1727-3781/2009/v12i3a2738
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
We are pleased to publish here, as an oratio, the Ebsworth Memorial Lecture delivered by Mr Justice Louis Harms in February 2007. In his lecture he addressed a range of contentious issues regarding the challenges of judging under a (new) Bill of Rights and he inter alia raises, "without answering, the question of whether a bill of rights should reflect existing societal values or whether it should create them." He also spoke candidly of judicial activism, verbosity emanating from the bench, the judiciary and the separation of powers and (in-)consistency in constitutional adjudication. Among his conclusions he states that a Bill of Rights "is supposed to remove arbitrariness, not only of legislation but also of adjudication."
Faculty of Law, North-West University, South Africa
2009-09-21 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2738
Potchefstroom Electronic Law Journal; Vol. 12 No. 3 (2009)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2757
2019-02-28T08:35:12Z
per:ED
driver
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"170626 2017 eng "
1727-3781
10.17159/1727-3781/2008/v11i1a2757
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
Faculty of Law, North-West University, South Africa
2008-04-09 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2757
Potchefstroom Electronic Law Journal; Vol. 11 No. 1 (2008)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2764
2019-02-28T08:36:03Z
per:ED
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"170626 2017 eng "
1727-3781
10.17159/1727-3781/2008/v11i2a2764
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
All contributions in this issue are focused on the notion of good governance. Prof Stephen de la Harpe and Ms Rolien Roos of the North-West University (Potchefstroom Campus) and Dr Conny Rijken of Tilburg University have produced the issue as guest editors. Their introduction provides a concise overview of the exciting contributions on this highly topical subject.
Faculty of Law, North-West University, South Africa
2008-08-22 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2764
Potchefstroom Electronic Law Journal; Vol. 11 No. 2 (2008)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2773
2019-02-28T08:36:29Z
per:ED
driver
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"170626 2017 eng "
1727-3781
10.17159/1727-3781/2008/v11i3a2773
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
This edition contains an interesting mixture of contributions from various parts of the world and from the perspective of various disciplines of the law.
o Dr. Timothy I Akomolede of the Olabisi Onabanjo University in Nigeria highlights a number of legal and socio-economic problems that have been engendered by the emergence of electronic commerce, especially in developing countries such as Nigeria.
Faculty of Law, North-West University, South Africa
2008-10-07 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2773
Potchefstroom Electronic Law Journal; Vol. 11 No. 3 (2008)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2780
2019-02-28T08:38:16Z
per:ED
driver
nmb a2200000Iu 4500
"170626 2017 eng "
1727-3781
10.17159/1727-3781/2009/v12i2a2780
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
• The oratio of Judge Deon van Zyl (currently Inspecting Judge: Inspectorate of Correctional Services) on the Judiciary as a Bastion of the Legal Order in Challenging Times appears in this issue at a time when the independence of the judiciary, the structures of the courts and various occurrences involving judges and the rule of law are topical in the public debate in South Africa. The paper was delivered in October 2008 as the annual FW de Klerk Lecture and it closes with the words: ". . . it is what they say and do in good faith and with reference to the moral values of the community they serve, that stimulates public confidence in the judiciary as a bastion of the legal order, however challenging the times may be."
Faculty of Law, North-West University, South Africa
2009-07-08 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2780
Potchefstroom Electronic Law Journal; Vol. 12 No. 2 (2009)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2790
2019-02-28T08:36:48Z
per:ED
driver
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"170704 2017 eng "
1727-3781
10.17159/1727-3781/2008/v11i4a2790
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
• Professor Dana van der Merwe of the University of South Africa (UNISA) delves into the impact of the information era on the law, drawing distinctions with the aid of legal philosophy between data, information and intelligence. o In similar vein Dr Tanya du Plessis of the University of Johannesburg investigates the impact of information and communication technology on the practice of law and knowledge management in law firms. o Professor Anneliese Roos of UNISA follows with an in-depth and comparative exposition of statutory data protection with specific reference to the legislation of New Zealand, illustrating important disadvantages for participants in the information technology arena in South Africa.
Faculty of Law, North-West University, South Africa
2008-12-09 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2790
Potchefstroom Electronic Law Journal; Vol. 11 No. 4 (2008)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2796
2019-02-28T08:31:17Z
per:ED
driver
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"170704 2017 eng "
1727-3781
10.17159/1727-3781/2007/v10i1a2796
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
This first issue of 2007 covers a refreshing spectrum of legal disciplines ranging from cultural and linguistic issues, to the onus of proof in delict, the censorship debate and research methodology.
Professor Elmene Bray of the University of South Africa analyses the complexities of the recent judgment of the Supreme Court of Appeal in a case involving the sensitive issue of the medium of instruction in public schools in South Africa.
Faculty of Law, North-West University, South Africa
2007-05-14 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2796
Potchefstroom Electronic Law Journal; Vol. 10 No. 1 (2007)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2804
2019-02-28T09:22:40Z
per:ED
driver
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"170704 2017 eng "
1727-3781
10.17159/1727-3781/2007/v10i3a2804
doi
dc
Editorial
Venter, Francois
North West University
The enforcement of socio-economic rights, the protection of biodiversity, inter-country adoptions, matrimonial property and Roman property law are the diverse, though highly engaging themes of this last issue of the year.
In their article focusing on the process of the implementation of socio-economic rights by means of court orders in South Africa, Advocate Renier de Beer of Johannesburg and Professor Stella Vettori of the University of Pretoria urge the courts to become more adventurous in their methods of enforcement of their orders.
Faculty of Law, North-West University, South Africa
2007-12-30 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2804
Potchefstroom Electronic Law Journal; Vol. 10 No. 3 (2007)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2808
2019-02-28T08:31:42Z
per:ED
driver
nmb a2200000Iu 4500
"170704 2017 eng "
1727-3781
10.17159/1727-3781/2007/v10i2a2808
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
The contributions of this issue all relate to the growing impact of globalization on divergent disciplines of the law such as labour law, public international law, international commercial law and electoral law. Globalization is a theme that will not recede in the time to come and many future contributions to P E R can be expected to address it from different perspectives.
Faculty of Law, North-West University, South Africa
2007-11-21 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2808
Potchefstroom Electronic Law Journal; Vol. 10 No. 2 (2007)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2816
2019-02-28T08:29:20Z
per:ED
driver
nmb a2200000Iu 4500
"170710 2017 eng "
1727-3781
10.17159/1727-3781/2006/v9i1a2816
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
In this first of at least three editions planned for 2006, the focus is on environmental law:
Professor Verschuuren of Tilburg University attributes the high moral value of the principles of environmental law to the ideal of sustainable development.
Advocate Paschke and Professor Glazewski of Cape Town offers strong arguments against allowing retrospective environmental authorisation as militating against the purposes of environmental assessment.
Faculty of Law, North-West University, South Africa
2006-05-31 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2816
Potchefstroom Electronic Law Journal; Vol. 9 No. 1 (2006)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2823
2019-02-28T08:29:51Z
per:ED
driver
nmb a2200000Iu 4500
"170710 2017 eng "
1727-3781
10.17159/1727-3781/2006/v9i2a2823
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
This second edition of 2006 offers an interesting range of topics, in this instance all covered by South African authors.
In her analysis of the "institutions supporting constitutional democracy" established by the South African Constitution, Professor Christina Murray of the University of Cape Town argues that thethe institutions share the roles of providing a check on government and of contributing to transformation. The newness of democracy, the great demands on the state and the political dominance of the governing party in South Africa are identified as the greatest challenges of the institutions discussed.
Faculty of Law, North-West University, South Africa
2006-09-27 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2823
Potchefstroom Electronic Law Journal; Vol. 9 No. 2 (2006)
eng
Copyright (c) 2017 Francois Venter
oai:journals.assaf.org.za:article/2830
2019-02-28T08:30:13Z
per:ED
driver
nmb a2200000Iu 4500
"170705 2017 eng "
1727-3781
10.17159/1727-3781/2006/v9i3a2830
doi
dc
Editorial
Venter, Francois
North West University(Potchefstroom Campus)
Issues of environmental law in the South African context once more characterise this final issue of 2006.
Couzens and Dent, both from the University of KwaZulu-Natal, extensively discuss shortcomings that occurred in the process of authorization of the building of a dam that will have implications for some ecosystems in the Kruger National Park. Alternative dispute resolution, as provided for in the National Environmental Management Act (NEMA) emerges as a likely means for the resolution of the difficulties and under the creative title "Finding NEMA", the authors express the hope that much will in future be learnt from the errors that occurred in this case.
Faculty of Law, North-West University, South Africa
2006-12-31 00:00:00
Editorial
application/pdf
https://perjournal.co.za/article/view/2830
Potchefstroom Electronic Law Journal; Vol. 9 No. 3 (2006)
eng
Copyright (c) 2017 Francois Venter