2024-03-28T12:41:22Z
https://perjournal.co.za/oai
oai:journals.assaf.org.za:article/13
2021-09-17T12:14:29Z
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Editorial
Rautenbach, Christa
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
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Editorial
application/pdf
https://perjournal.co.za/article/view/13
10.17159/1727-3781/2015/v18i1a13
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 0-0
1727-3781
eng
https://perjournal.co.za/article/view/13/15
Copyright (c) 2015 Christa Rautenbach
http://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/14
2019-04-15T06:35:42Z
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Domestic Partners and "The Choice Argument": Quo Vadis?
Bester, Ben Coetzee
Louw, Anne
Domestic partners
Domestic partnerships
Choice argument
Contextualised model of choice
Functional approach to family law
Draft Domestic Partnerships Bill of 2008
In the absence of formal legal recognition, domestic partners are required to regulate the consequences of their relationship by utilising alternative regulatory measures and remedies which are, for the most part, inadequate. The traditional justification used to differentiate between domestic partners and spouses is known by some as the choice argument. The choice argument is based on the rationale that persons who choose not to marry cannot claim spousal benefits. It understands choice narrowly as it takes into account only an objective legal impediment to marriage. As such, it has been the driving force behind the non-recognition of heterosexual domestic partnerships. Same-sex domestic partnerships, on the other hand, have until recently been recognised under the choice argument on an ad hoc basis, as there existed an objective legal impediment to their marriage, namely their sexual orientation. According to the majority of legal commentators the enactment of the Civil Union Act 17 of 2006 removed the objective legal impediment against same-sex marriage. They therefore argue that the choice argument should now be applied to both heterosexual and same-sex domestic partners equally. However, the Constitutional Court has expressed some doubt as to the correctness of this assumption. Taking into consideration the choice argument's narrow understanding of choice, together with the possible unfair discrimination caused by its application, an alternative theoretical basis for the future recognition and regulation of domestic partnerships had to be found. Three possible solutions were investigated, namely the model of contextualised choice, the function-over-form approach, and finally the Smith model. Because of the invasive effect of the latter two approaches, this study advocates for the adoption of the model of contextualised choice. If adopted it would mean that the subjective considerations of domestic partners will be taken into account and they will be afforded with a minimum degree of protection based on need. After having accepted this approach the study had to determine to what extent proposed legislation adopts a contextualised approach to choice. Accordingly, it had to be determined whether proposed legislation provides domestic partners with need-based claims while still upholding the established differences between domestic partnerships and formalised relationships. It was ultimately concluded that the proposed legislation would have the effect of blurring the differences insofar as registered domestic partnerships were concerned, the reason being that such a partnership comes into existence through a public expression of the partners' commitment and, as such, does not really fall within the ambit of the definition of a domestic partnership in the narrow sense of the word. With regard to unregistered domestic partners, it was concluded that the proposed legislation went too far in protecting unregistered partners' proprietary rights (even if only on an ex post facto basis) as these claims were not based on need. It was therefore recommended that the proposed legislation be redrafted. If not redrafted the proposed legislation would have the effect not only of infringing on the autonomy of one or both of the partners but also of creating a regulatory system which does not fully appreciate the differences between marriage and domestic partnerships.
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
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https://perjournal.co.za/article/view/14
10.4314/pelj.v18i1.01
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 2951-2981
1727-3781
eng
https://perjournal.co.za/article/view/14/46
https://perjournal.co.za/article/view/14/3084
https://perjournal.co.za/article/view/14/8411
Copyright (c) 2015 Ben Coetzee, Anne Louw
oai:journals.assaf.org.za:article/15
2019-04-15T06:39:06Z
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When does State Interference with Property (now) Amount to Expropriation? An Analysis of the Agri SA Court's State Acquisition Requirement (Part I)
Marais, Ernst Jacobus
Expropriation
Deprivation
Section 25
Property clause
State acquisition
Constitutional property law
Agri SA case
Section 25 of the Constitution provides two ways in which the state may interfere with property rights, namely deprivation (section 25(1)) and expropriation (section 25(2)). As only the latter requires compensation, there is an incentive for property holders to label any infringement upon their property as expropriation in the hope of being compensated for their losses. It is therefore essential to have a principled distinction between these two forms of state interference, especially given the danger that uncertainty in this regard can hold for legitimate land reform initiatives, which often entail severe limitations on property. In the Agri SA case the Constitutional Court recently revisited this distinction and held that the distinguishing feature of expropriation is that it entails state acquisition of property. Two aspects of this judgment are worthy of consideration. Firstly, the centrality of acquisition makes it necessary to clarify its meaning and role in our law. Secondly, the Court's effect-centred test to establish whether acquisition took place appears incapable of coherently categorising property infringements that fall within the grey area between deprivation and expropriation. To address these two questions this article is divided into two parts. Part I investigates the meaning and role of state acquisition in South African law. Pre-constitutional expropriation law reveals that expropriation is an original method of acquisition of ownership and that the objects of expropriation include ownership, limited real rights, and certain personal rights, which correspond to the meaning attributed to this requirement in Agri SA. However, post-constitutional judgments diverge from pre-constitutional law regarding the role of state acquisition, where it was merely regarded as a general hallmark of expropriation. After Agri SA state acquisition is (now) the "key feature" that distinguishes expropriation from deprivation. A brief analysis of Australian constitutional property law shows that the meaning attached to "acquisition" in that jurisdiction is broadly similar to the construction placed upon the term in South African law, which explains why the expropriation of limited real rights (as well as the extinguishment of claims in certain cases) amounts to acquisition of property. The jurisprudence of the Australian High Court also sheds light on one of the factors laid down in Agri SA for determining whether or not acquisition took place, namely the source of the affected right. It also confirms another aspect of pre-constitutional South African expropriation law, namely that whether a property interference results in expropriation or not does not depend only on whether or not acquisition occurred. In dealing with these considerations Part II of this article expands on the shortcomings of confining the expropriation question to whether or not acquisition took place. It then suggests an alternative approach to state acquisition, one which focuses on the purpose of the impugned statute, as opposed to its effect, as was done by the Constitutional Court in Harksen.
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
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https://perjournal.co.za/article/view/15
10.4314/pelj.v18i1.02
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 2983-3031
1727-3781
eng
https://perjournal.co.za/article/view/15/49
https://perjournal.co.za/article/view/15/3086
https://perjournal.co.za/article/view/15/8412
Copyright (c) 2015 Ernst Jacobus Marais
oai:journals.assaf.org.za:article/16
2017-09-01T14:48:39Z
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oai:journals.assaf.org.za:article/17
2019-04-15T06:42:57Z
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Leveraging Traditional Knowledge on the Medicinal Uses of Plants within the Patent System: The Digitisation and Disclosure of Knowledge in South Africa
Amechi, Emeka Polycarp
Traditional knowledge
Medicinal uses of plants
National recordal system
Prior art
Disclosure of origins
Patent
Traditional knowledge (TK) plays an important role in the global economy and is valuable not only to those who traditionally depend on it in their daily lives, but also to modern industry, especially the global biotechnology, pharmaceutical and agribusiness corporations. Yet the exploitation of TK by these industries does not usually lead to corresponding benefits to indigenous communities either in the form of attribution or compensation. Such misappropriations of TK are aided by the fact that the global intellectual property (IP) regime as presently structured is based entirely on the traditionally western or conventional description of knowledge, as are its conceptions of individual intellectual property ownership. In response to the fact that their calls for the reform of the global patent system have not be heeded, most developing countries, including South Africa, have resorted to the adoption of a radically different strategy in their approach to intellectual property, particularly as it concerns the protection of their TK from misappropriation. This is evident in the adoption of strategic measures in South Africa for the protection of various aspects of its TK forms from misappropriation, such as the National Recordal System (NRS) and Disclosure of Origins (DRs). This paper seeks to explore the implications of these measures in leveraging TK within the structure, content and conceptual framework of the patent system in South Africa. The focus is on TK associated with the medicinal uses of plants (TKMUP).
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/17
10.4314/pelj.v18i1.04
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3072-3101
1727-3781
eng
https://perjournal.co.za/article/view/17/55
https://perjournal.co.za/article/view/17/3087
https://perjournal.co.za/article/view/17/8413
Copyright (c) 2015 Emeka Polycarp Amechi
oai:journals.assaf.org.za:article/18
2019-04-15T06:46:22Z
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The South African Companies Act and the Realisation of Corporate Human Rights Responsibilities
Gwanyanya, Manson G.
Human rights
Responsibilities
Realisation
Obligations
Companies
Constitution
The Companies Act 71 of 2008 (the Companies Act) was promulgated in April 2009 and came into effect on 1 April. The purpose of this Act is, among other things, to promote compliance with the Bill of Rights as provided for in the Constitution of the Republic of South Africa, 1996 (the Constitution), in the application of company law. This gives recognition to the constitutional imperative to bring company law within the South African constitutional law framework. This article argues that by including the promotion of compliance with the Bill of Rights as provided for in the Constitution in the application of company law, the Companies Act effectively reinforces a duty for companies to ensure that they should always seek to prevent violations of human rights, particularly those human rights that are directly linked to their operations. This article looks at certain provisions in the Companies Act and argues that the inclusion of these provisions if interpreted in a certain manner will reconcile the values and practices of company law with the related human rights concerns. It argues that the inclusion of the Bill of Rights in the application of company law ensures that human rights concerns are also considered within the functioning of the company. The article then looks at the various provisions in the Act which have the potential to ensure that this position is achieved in the application of company law.
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/18
10.4314/pelj.v18i1.05
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3102-3131
1727-3781
eng
https://perjournal.co.za/article/view/18/56
https://perjournal.co.za/article/view/18/3088
https://perjournal.co.za/article/view/18/8415
Copyright (c) 2015 Manson G. Gwanyanya
oai:journals.assaf.org.za:article/19
2019-04-15T06:46:58Z
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A Future for the Doctrine of Substantive Legitimate Expectation? The Implications of Kwazulu-Natal Joint Liaison Committee v Mec for Education, Kwazulu Natal
Murcott, Melanie
Substantive legitimate expectation
Publicly promulgated promise to pay
Rationality
In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which had left the way open for the Constitutional Court to develop a doctrine of substantive legitimate expectation in KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal (KZN JLC). I then discuss the court's refusal to develop the doctrine in KZN JLC and analyse the approach adopted instead, which saw the court invoke rationality review to create a new legal mechanism for the enforcement of a unilateral, publicly promulgated promise by government to pay on broad public law grounds. I do so from the perspective of whether or not this creative approach amounted to the development of the doctrine by another name. I consider the implications of the creative approach in KZN JLC for the development of the doctrine of substantive legitimate expectation under administrative law in future. Finally I discuss how the creation of a new legal mechanism to enforce publicly promulgated promises to pay was "subversive of PAJA and the scheme in s 33 of the Constitution".
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
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https://perjournal.co.za/article/view/19
10.4314/pelj.v18i1.06
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3133-3158
1727-3781
eng
https://perjournal.co.za/article/view/19/57
https://perjournal.co.za/article/view/19/3089
https://perjournal.co.za/article/view/19/8417
Copyright (c) 2015 Melanie Murcott
oai:journals.assaf.org.za:article/20
2019-04-15T06:49:59Z
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Inclusive Basic Education in South Africa: Issues in its Conceptualisation and Implementation
Murungi, Lucyline Nkatha
Children with disabilities
Basic education
Inclusive education
Special education
Special needs education
Right to education
Education is one of the most topical issues in South Africa. In recent years, particularly in the period after the adoption of the UN Convention on the Rights of Persons with Disabilities (2006) (hereinafter CRPD), the discourse on the education of children with disabilities has mainly focused on the potential of White Paper 6 on Special Needs Education (2001) (hereinafter WP 6) and its implementing programmes to facilitate the realisation of the right to education for children with disabilities. The CRPD proposes inclusive education as the appropriate way of ensuring the right to education for children with disabilities, and sets out a framework for the implementation thereof. In addition, the CRPD sets out other principles which essentially redefine the approach to the interpretation and implementation of the rights of persons with disabilities. One such principle is the principle of non-discrimination, which demands that all rights be implemented on a basis of equality between all people, disability notwithstanding. Arguably, the legal and policy frameworks on education in South Africa reflect the standards proposed under the CRPD to some extent, and other instruments on the right to education. However, there are still considerable challenges in the conceptualisation and implementation of inclusive education, especially at the basic education level. These challenges are not unique to South Africa, and are mainly attributable to the evolutionary background of the concept of inclusive education at the international level. Hence for instance, the understanding of inclusive education often tends to focus exclusively on the education of persons with disabilities as opposed to the inclusion of all marginalised and excluded groups. This narrow understanding is replicated in South African law, policy, and practice of education. Challenges to the realisation of inclusive basic education in South Africa are compounded further by the pertinent issues underlying the implementation of basic education in South Africa such as the question of equality in education, the financing of basic education, the nature of the states duties pertaining to the provision of basic education, and the interpretation of the notion of basic education. The understanding of inclusive education in South Africa has also been impacted by historical factors, such as the apartheid exclusion of the masses from mainstream basic education, and the subsequent need to "include" everyone in post-apartheid education. All of these factors point to the need to interrogate the current approaches to inclusive basic education in South Africa as against the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), and international standards that South Africa has committed to through the ratification of the CRPD and the UN Convention on the Rights of the Child (1989) (hereafter the CRC). For instance, there is a need to establish the extent to which the differentiated obligations with respect to basic education as distinct from other levels of education apply to inclusive education. Hence, is there a difference between the nature of the states obligations in respect of "basic education" and those relative to "inclusive basic education"? Further, it is imperative to establish the convergence or divergence between inclusive education as set out in the CRPD and as implemented through WP 6.
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/20
10.4314/pelj.v18i1.07
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3160-3195
1727-3781
eng
https://perjournal.co.za/article/view/20/58
https://perjournal.co.za/article/view/20/3090
https://perjournal.co.za/article/view/20/8418
Copyright (c) 2015 Lucyline Nkatha Murungi
oai:journals.assaf.org.za:article/21
2019-04-15T06:53:03Z
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"Just Piles of Rocks to Developers but Places of Worship to Native Americans" - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities
Ratiba, Matome M.
Constitutional law
Earth jurisprudence
Cultural practices
Freedom of religion
Religious rituals
Protection of sacred lands
Throughout the years cultural communities across the world have borne witness to many unending attempts at the destruction of their places of worship. This endemic problem has arisen in a number of places, such as in the USA and in most of the world's former colonies. Having been colonised, South African cultural communities have experienced the same threats to their various sacred sites. This article seeks to argue and demonstrate that cultural communities in South Africa stand to benefit from the properly construed and rich earth jurisprudence arising out of the courtroom experiences of some of the cultural communities identified elsewhere in the world. It also proposes several arguments peculiar to South Africa which could be advanced by cultural communities seeking to protect their sacred lands.
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
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https://perjournal.co.za/article/view/21
10.4314/pelj.v18i1.08
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3197-3236
1727-3781
eng
https://perjournal.co.za/article/view/21/59
https://perjournal.co.za/article/view/21/3091
https://perjournal.co.za/article/view/21/8416
Copyright (c) 2015 Matome M. Ratiba
oai:journals.assaf.org.za:article/22
2019-04-15T06:56:13Z
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Legal Aspects with Regard to Mentally Ill Offenders in South Africa
Swanepoel, Magdaleen
Mental illness
Mentally ill offenders
Forensic psychiatry
Defence with regard to mental illness
Criminal Procedure Act
Mental Health Care Act
The purpose of this note is to discuss legal aspects with regard to mentally ill offenders with specific reference to the defence raised as a result of mental illness. In order to fully understand this defence it is important to provide a clinical background on what forensic psychiatry is. It is also necessary to define certain clinical concepts such as the concept of mental illness, and the criteria for the classification of mental illnesses. This then leads to a discussion of the defence of mental illness. A conclusion is drawn at the end, with a summary of the findings.
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
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application/vnd.openxmlformats-officedocument.wordprocessingml.document
https://perjournal.co.za/article/view/22
10.4314/pelj.v18i1.09
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3238-3258
1727-3781
eng
https://perjournal.co.za/article/view/22/60
https://perjournal.co.za/article/view/22/3092
https://perjournal.co.za/article/view/22/8419
Copyright (c) 2015 Magdaleen Swanepoel
oai:journals.assaf.org.za:article/23
2019-04-15T06:58:43Z
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Huidige Regsontwikkeling ten aansien van Uitwinbaarverklaring van ʼn Verband oor ʼn Onroerende Saak
Fuchs, Michelle M. M.
Artikel 129(1)(a)-kennisgewing
Kubyana-uitspraak
Oproepingsproses
Sebola-uitspraak
Uitwinbaarverklaring
Voorverhoorprosedur
Wanneer . verbandskuldeiser . verbandskuldenaar se onroerende saak weens wanprestasie uitwinbaar wil laat verklaar, is hy aan streng formaliteite onderworpe ter beskerming van die verbandskuldeiser en verbandskuldenaar wat saaklike sekerheidsregte oor . onroerende saak het. Daar is verskillende stadiums waaraan die verbandskuldeiser moet voldoen voordat hy 'n verband oproep ten einde eksekusie teen die sekerheidsobjek te verkry. Die oproepingsproses kan in vier stadiums verdeel word: eerstens, die voorverhoorprosedure; tweedens, die bepaling van die geskikte hof . jurisdiksie; derdens, die oproeping van 'n verband in die hof, hofprosedure; en, vierdens, beslaglegging en die eksekusieverkoping (eksekusie). Hierdie stadiums het onlangs verskeie veranderings ondergaan wat hoofsaaklik deur die Grondwet van die Republiek van Suid-Afrika, 1996 (die Grondwet) en ander verbruikers-beskermingsmaatreels soos die Nasionale Kredietwet 34 van 2005 teweeggebring is. Volledigheidshalwe bespreek ek onlangse regsontwikkeling met verwysing na nuwe regspraak en wetgewing ten aansien van die eerste drie stadiums van die oproepingsproses van 'n verband op 'n onroerende saak. Daar word besondere klem gele op ontwikkeling ten aansien van die hofprosedure (litigasieprosedure) by die uitwinbaarverklaring van. verband, wat die derde stadium in die oproepingsproses is. Beslaglegging en die daaropvolgende eksekusieverkoping kom egter nie in hierdie artikel aan bod nie.
Faculty of Law, North-West University, South Africa
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
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https://perjournal.co.za/article/view/23
10.4314/pelj.v18i1.10
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3260-3298
1727-3781
eng
https://perjournal.co.za/article/view/23/61
https://perjournal.co.za/article/view/23/3093
https://perjournal.co.za/article/view/23/8414
Copyright (c) 2015 Potchefstroom Electronic Law Journal (PER)
oai:journals.assaf.org.za:article/24
2021-07-26T11:12:56Z
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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
Benefits
Contractual obligation
Unfair labour practices
Ex contractu
Ex lege
Remuneration
Policy
Discretion
Unfairness
Dispute of interest
Dispute of right
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
2015-02-21
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed article
application/pdf
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application/epub+zip
https://perjournal.co.za/article/view/12353647
10.4314/pelj.v18i1.11
Potchefstroom Electronic Law Journal; Vol. 18 No. 1 (2015); 3300-3313
1727-3781
eng
https://perjournal.co.za/article/view/12353647/62
https://perjournal.co.za/article/view/12353647/3094
https://perjournal.co.za/article/view/12353647/8394
Copyright (c) 2015 Elmarie Fourie
oai:journals.assaf.org.za/oai:article/470
2016-01-28T14:08:12Z
per:ART
oai:journals.assaf.org.za:article/495
2019-02-28T08:52:03Z
per:ED
Editorial
Rautenbach, Christa
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
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Editorial
https://perjournal.co.za/article/view/495
10.17159/1727-3781/2015/v18i2a495
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015)
1727-3781
Copyright (c) 2015 Christa Rautenbach
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/555
2019-04-25T09:39:09Z
per:ART
driver
Employers' Statutory Vicarious Liability in Terms of the Protection of Personal Information Act
Millard, Daleen
Bascerano, Eugene Gustav
Vicarious liabiliy – Protection of Personal Information Act – defences – comparison with Employment Equity Act
United Kingdom’s Data Protection Act of 1998
the New Zealand’s Privacy Act 28 of 1993
and the Australian Privacy Act 119 of 1988
A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability.
Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far.
This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes.
Faculty of Law, North-West University, South Africa
2017-05-17
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/555
10.17159/1727-3781/2016/v19i0a555
Potchefstroom Electronic Law Journal; Vol. 19 (2016); 1-38
1727-3781
eng
https://perjournal.co.za/article/view/555/2617
https://perjournal.co.za/article/view/555/3034
https://perjournal.co.za/article/view/555/8237
Copyright (c) 2016 Daleen Millard, Eugene Gustav Bascerano
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/565
2021-07-26T11:25:03Z
per:ART
driver
Protecting Personal Information in the Era of Identity Theft: Just how Safe is our Personal Information from Identity Thieves?
Cassim, F
Identity theft
fraud
theft
cybercrime
personal information
data
Internet
cyberspace
right to privacy
computer users
law enforcement agencies
businesses
legislation
South Africa
United States of America
United Kingdom
India
Identity theft has become one of the fastest growing white collar crimes in the world. It occurs when an individual's personal information such as inter alia his or her name, date of birth or credit card details is used by another individual to commit identity fraud. Identity theft can be committed via physical means or online. The increased use of the Internet for business and financial transactions, social networking and the storage of personal information has facilitated the work of identity thieves. Identity theft has an impact on the personal finances and emotional well-being of victims, and on the financial institutions and economies of countries. It presents challenges for law enforcement agencies and governments worldwide. This article 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. The article examines measures introduced by the respective governments in these countries to counteract such crimes. Finally, the article will propose a way forward to counteract such crimes in the future. The study reveals that identity theft is a growing and evolving problem that requires a multi-faceted and multi-disciplinary approach by law enforcement agencies, businesses, individuals and collaboration between countries. It is advocated that businesses and institutions should take measures to protect personal information better and that individuals should be educated about their rights, and be vigilant and protect their personal information offline and in cyberspace.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/565
10.4314/pelj.v18i2.02
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 68-110
1727-3781
eng
https://perjournal.co.za/article/view/565/432
https://perjournal.co.za/article/view/565/3096
https://perjournal.co.za/article/view/565/8421
Copyright (c) 2015 F Cassim
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/577
2019-04-25T12:13:20Z
per:Note
driver
Section 27 of the Insolvency Act 24 of 1936 as a Violation of the Equality Clause of the Constitution of South Africa: A Critical Analysis
Mabe, Zingaphi
Insolvency
sequestration
dispositions
antenuptial contract
right to equality
discrimination
marital status
sexual orientation
birth
civil union
civil marriages
customary marriages
The Constitution of the Republic of South Africa, 1996, is regarded as one of the most progressive constitutions in the world. As the supreme law in South Africa, it applies to all law and conduct. All South African laws must be consistent with the Constitution. Where there is an alleged violation of constitutional provisions, that law or conduct must be evaluated to establish whether or not it is consistent with the values of an open and democratic society based on fundamental human rights such as human dignity and the right to equality.
The Insolvency Act and section 27 in particular which is the focus of this paper must be consistent with the Constitution. Section 27(1) provides:
"No immediate benefit under a duly registered antenuptial contract given in good faith by a man to his wife or any child to be born of the marriage shall be set aside as a disposition without value, unless that man's estate was sequestrated within two years of the registration of that antenuptial contract."
This section protects benefits arising from an antenuptial contract and given by a man to his wife or to a child born of their marriage, from being set aside as dispositions without value during sequestration proceedings. The same protection is not afforded however, to benefits given by the wife under an antenuptial contract. This also excludes benefits given by those in a same sex marriage, and limits the benefits available to children born of that form of marriage.
As the right to equality in section 9 of the Constitution seeks to provide equal benefits before the law to persons in the same or similar positions by prohibiting unfair discrimination, the limitations in section 27 render it vulnerable to constitutional review.
As the Insolvency Act has not been amended as a whole to accommodate the equality provisions in the Constitution, in its current form, section 27 seems to violate section 9(3) of the Constitution on the grounds of sexual orientation, marital status and birth.
However, certain proposals have been made in the report by the South African Law Reform Commission on the Review of the Law of Insolvency to develop section 27 to comply with the Constitution. Further developments have been proposed by the Department of Justice and Constitutional Developments in its presentations to the Labour Market Chamber in 2003 and 2006.
This paper examines section 27 of the Insolvency Act as it currently reads, within the context of the right to equality in section 9 of the Constitution. Current developments in respect of section 27 will be considered to illustrate progress made in reforming the section and whether the reform measures proposed will protect all those affected by the discrimination arising from section 27.
The discussion opens with a consideration of the current dispensation and the question whether section 27 violates section 9(3) of the Constitution. Current developments will then be discussed in the light of the current proposals.
Faculty of Law, North-West University, South Africa
2017-05-17
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/577
10.17159/1727-3781/2016/v19i0a577
Potchefstroom Electronic Law Journal; Vol. 19 (2016); 1-24
1727-3781
eng
https://perjournal.co.za/article/view/577/2644
https://perjournal.co.za/article/view/577/3064
https://perjournal.co.za/article/view/577/8269
Copyright (c) 2016 Zingaphi Mabe
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/578
2019-04-25T10:22:17Z
per:ART
driver
At the Intersection between Expropriation Law and Administrative Law: Two Critical Views on the Constitutional Court's Arun Judgment
Marais, Ernst
Maree, PJH
section 33
administrative law
lawfulness
legality principle
subsidiarity principles
expropriation
deprivation
section 25
property clause
constitutional property law
Arun case
In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of such a plan. This includes land that is in excess of the normal need of the development. The appellant must hence be compensated for the "expropriation" of such excess land if the provision is to comply with section 25(2) of the Constitution. This ruling is problematic for both expropriation law and administrative law.
In terms of section 25(2) four objections may be raised against the Arun decision. Firstly, it disregards the function of the public interest requirement for expropriation, as understood in view of the law-of-general-application requirement (which, in turn, is informed by the legality principle). The state cannot expropriate property for purposes that are ultra vires (or ulterior to) the authorising legislation. Yet the Arun court seems to allow just this by permitting the local authority to acquire land unrelated to the normal need of the development against payment of compensation instead of setting the attempted expropriation aside. The judgment, secondly, ignores the role of compensation under section 25(2). Merely paying compensation to an affected party cannot turn an invalid expropriation into a valid one, since compensation is merely the result of a valid expropriation and not a justification for it. Thirdly, it makes the distinction between deprivation and expropriation pivot on the effect of the property limitation, which is unable to properly distinguish between these two forms of limitation in all instances. Finally, Moseneke DCJ's ruling seems to afford an election to litigants who are affected by materially defective expropriations to choose whether to accept the expropriation and claim compensation or to have it reviewed and set aside under PAJA. This election, if it indeed exists, subverts the principles of expropriation law and may have negative repercussions for both expropriation law and administrative law, especially in view of the single-system-of-law principle.
From an administrative law perspective the authors identify four considerations that could assist courts in determining whether administrative law should be considered, if not applied, in a given case. The first is the internal coherency of the law in view of the subsidiarity principles. The subsidiarity principles provide guidelines for courts to decide cases where two fundamental rights might be applicable. A principled approach is necessary in this context to ensure that the law operates as a single system and displays the positive characteristics of such a system. The fact that Moseneke DCJ preferred to award compensation to Arun instead of reviewing the expropriation under PAJA runs contrary to these principles and seems to result in an outcome which endorses – instead of prevents – administrative injustice. Secondly, the Constitutional Court's refusal to follow PAJA by reason of its being onerous on the appellant contradicts earlier case law where the Court held that time-periods under the Act cannot be circumvented by reason of their being burdensome.
Faculty of Law, North-West University, South Africa
2017-05-17
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/578
10.17159/1727-3781/2016/v19i0a578
Potchefstroom Electronic Law Journal; Vol. 19 (2016); 1-54
1727-3781
eng
https://perjournal.co.za/article/view/578/2622
https://perjournal.co.za/article/view/578/3042
https://perjournal.co.za/article/view/578/8243
Copyright (c) 2016 Ernst Marais, PJH Maree
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/579
2019-04-15T07:03:48Z
per:ART
driver
Responsibilities of Companies towards Employees
Botha, MM
Corporate governance
corporate law
corporate social responsibility
sustainability
corporate citizenship
employee participation
decision-making
stakeholders
shareholders
managerial prerogative
social justice
Central to company law is the promotion of corporate governance. An important question in company law still today is in whose interest the company should be managed. Corporate governance needs to address the entire span of responsibilities to stakeholders of the company such as customers, employees, shareholders, suppliers and the community at large. The promotion of human rights in the application of company law must also take place. This is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a "social institution" should be enhanced and protected. Because corporations are part of society and the community, like all of us, it is required of them to be socially responsible and have greater accountability to all stakeholders of the company. Although directors must act in the best interests of shareholders collectively they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are thus important. The advancement of social justice is thus important to corporations in that they should take note of the Constitution, labour legislation and company law legislation when social justice issues are dealt with. Employees have become very important stakeholders of companies and their needs should be taken into account in the bigger corporate governance and social responsibility framework.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/579
10.4314/pelj.v18i2.01
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 1-67
1727-3781
eng
https://perjournal.co.za/article/view/579/440
https://perjournal.co.za/article/view/579/3095
https://perjournal.co.za/article/view/579/8420
Copyright (c) 2015 MM Botha
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/580
2019-04-15T07:05:20Z
per:ART
driver
The Regulation of Market Manipulation in Australia: A Historical Comparative Perspective
Chitimira, H
Enforcement
market abuse
regulation
financial markets
market manipulation
Notably, in Australia, market abuse practices like market manipulation and other market misconduct practices are expressly prohibited under the Corporations Act as amended by the Financial Services Reform Act. In the light of this, and for the purposes of this article, a brief historical analysis of the market manipulation prohibition will be presented first. Secondly, the available penalties and remedies for market manipulation are discussed. Thereafter, possible recommendations and significant Australian anti-market abuse enforcement approaches that may be utilised in South Africa are briefly stated. Lastly, concluding remarks are provided.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/580
10.4314/pelj.v18i2.03
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 111-148
1727-3781
eng
https://perjournal.co.za/article/view/580/441
https://perjournal.co.za/article/view/580/3097
https://perjournal.co.za/article/view/580/8422
Copyright (c) 2015 H Chitimira
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/581
2021-07-26T11:37:14Z
per:ART
driver
Suggested Safeguards and Limitations for Effective and Permissible Parenting Coordination (Facilitation or Case Management) in South Africa
De Jong, M
Parenting coordination
facilitation
case management
alternative dispute resolution
divorce
family breakdown
shared parenting
Children's Act 38 of 2005
high-conflict co-parenting cases
negative consequences of divorce on children
With the advent of the Children's Act 38 of 2005 greater emphasis was placed on the importance of both parents' involvement in their children's day-to-day lives. An unintended negative consequence of an otherwise laudable shift in social policy which supported a shared parental involvement was that the courts became the forum for co-parents to dispute a lot of day-to-day issues in respect of their children. To alleviate the negative effects of high-conflict co-parenting cases on our court system and the children of divorce, a new alternative dispute resolution process, namely parenting coordination, was introduced. The new process was not labelled as such, but became known as facilitation in the Western Cape, and as case management in Gauteng. Parenting coordination is a legal-psychological hybrid intervention that derives from the practice of the courts. It has the potential to provide substantial benefits for divorcing or separating parties, their children and the court system. Since its inception a few years ago, parenting coordination has steadily grown in popularity as an alternative dispute resolution tool in South Africa. Overhasty implementation of parenting coordination without considering certain concerns could, however, damage the "brand" and lead to confusion about the process. In the first place the difference in nomenclature is a real problem. Secondly, the training and qualifications of parenting coordinators are problematic and even non-existent in most provinces. Thirdly, it is argued by sceptics that parenting coordination is impermissible and constitutes an improper delegation of judicial authority in circumstances where the parenting coordinator is appointed in a court order and not in terms of an Act or court rule or by agreement between the parties. It is further observed that parenting coordination amounts to arbitration in contravention of section 2 of the Arbitration Act 42 of 1965, which currently prohibits the use of arbitration in respect of matrimonial matters. Lastly, the cost of parenting coordination is indicated as an area of contention. To properly address these problems, various safeguards for and limitations on parenting coordination practice are considered. It is proposed that the internationally accepted term "parenting coordination" is also consistently used in South Africa. It is further proposed that adequate qualifications, proper training and sufficient experience for parenting coordinators are set. To counter the argument that parenting coordination is an unlawful delegation of judicial power, the necessary authority for courts to refer parties for parenting coordination is sought, firstly in the inherent power of the High Court as upper guardian to ensure the best interests of children, and secondly in the Children's Act and the Constitution of the Republic of South Africa, 1996 as far as the children's court and divorce courts are concerned. In addition, various limitations regarding the conditions under which and the stage at which a parenting coordinator should be appointed, the scope of a parenting coordinator's decision-making powers and the finality of his or her directives are suggested. Lastly, the issue of the affordability of parenting coordination is addressed and suggestions are made on ways to provide fair access to this new intervention.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/581
10.4314/pelj.v18i2.04
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 149-178
1727-3781
eng
https://perjournal.co.za/article/view/581/442
https://perjournal.co.za/article/view/581/3098
https://perjournal.co.za/article/view/581/8423
Copyright (c) 2015 M De Jong
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/582
2019-04-15T07:07:42Z
per:ART
driver
Exploring the Cultural Dimensions of the Right to the Highest Attainable Standard of Health
Donders, YM
Culture
cultural diversity
health
human rights
right to health
traditional practices
The right to enjoying the highest attainable standard of health is incorporated in many international and regional human rights instruments. This right contains both freedoms and entitlements, including the freedom to control one's own health and body and the right to an accessible system of health care, goods and services. Both aspects of the right to health – freedoms and entitlements – have important cultural dimensions. The UN Committee on Economic, Social and Cultural Rights has for instance stated that the right to health implies that health facilities, goods and services must be culturally appropriate, in other words respectful of the culture of individuals and communities. At the same time, it should be noted that culture and health may have a problematic relationship. Cultural patterns, attitudes or stereotypes may severely limit the health freedoms of people or may prevent certain people from accessing health care. Furthermore, there are some cultural or traditional practices that are condoned but that are very harmful to people's health. It seems that international human rights law demands respect for the cultural dimensions of the right to health, while at the same time requiring protection of the right to health against negative aspects of cultures. How does this work out in practice? What does the concept of "culturally appropriate" health goods and services mean at the national level? Who decides on what is or is not culturally appropriate? How have international supervisory bodies elaborated on the freedoms and entitlements of the right to health and the obligations for States Parties to the treaties in relation to the cultural dimensions of the right to health? This article analyses several treaty provisions and the interpretation of these provisions by the treaty monitoring bodies. Apart from several UN treaties, several regional treaties in Africa are dealt with, notably the African Charter on Human and Peoples' Rights. The article concludes that various cultural dimensions of the right to health are recognised and elaborated upon in recommendations by treaty monitoring bodies both at UN and African level. These bodies have endorsed the idea that health facilities, goods and services must be respectful of the culture of individuals, peoples and communities. At the same time, the right to health should be protected against the negative impact that cultural values, patterns or practices may have, such as on access to health goods and services and on the health of people as such. The latter issue has received most attention at the UN as well as at African level, and there appears to be a clear consensus on several practices that are considered harmful. It is also realised, however, that the identification of a certain practice as harmful by an international body, even if agreed to by the State Party, is not sufficient to eradicate it. Cultural communities are crucial in promoting social and behavioural changes that may be needed to eradicate harmful practices. It is therefore important to involve the cultural communities concerned in the drafting, implementation and evaluation of health laws and policies. This could be more emphasised by the monitoring bodies. The involvement of the cultural community is also crucial to respecting and promoting the more positive cultural dimensions of the right to health. By consulting the cultural communities and individuals concerned, States can implement the right to the enjoyment of the highest attainable standard of health in a culturally sensitive, appropriate and responsible way.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/582
10.4314/pelj.v18i2.05
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 179-222
1727-3781
eng
https://perjournal.co.za/article/view/582/443
https://perjournal.co.za/article/view/582/3099
https://perjournal.co.za/article/view/582/8424
Copyright (c) 2015 YM Donders
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/583
2019-02-28T08:52:03Z
per:ART
driver
Law's Poverty
Modiri, JM
Racialised poverty
oppression
imaginary domain
precarity
theories of justice
rights discourse
critical theory
This article adopts an analysis that explicitly politicises poverty and relates it to the concrete history of racialised capitalism and structural inequality that defined colonialism and apartheid and continues to persist and intensify in "post"-apartheid South Africa. Rather than formulating racialised poverty in legalist, economist or managerial terms, it should rather be understood as a form of oppression that comprises exploitation, marginalisation, powerlessness, cultural imperialism and violence. Such a formulation would make social structure, historical injustice and power central and would also allow for poverty to be grasped beyond a purely distributive logic by bringing to light the non-distributive, non-economic dimensions of poverty. Comprehending poverty in this way, as not only a question of economic distribution and empowerment, but also one of ethical, moral and even ontological recognition necessitates an enquiry into the emancipatory force of rights. Given their centrality in political and social discourse and in legal scholarship on poverty, it is worth considering whether and to what extent rights can be utilised in the struggle against (racialised) poverty.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/583
10.4314/pelj.v18i2.06
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 223-273
1727-3781
eng
https://perjournal.co.za/article/view/583/445
https://perjournal.co.za/article/view/583/3100
https://perjournal.co.za/article/view/583/8426
Copyright (c) 2015 JM Modiri
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/584
2019-04-25T10:50:03Z
per:ART
driver
Organic Food Certification in South Africa: A Private Sector Mechanism in Need of State Regulation?
Lim Tung, Odile Juliette
organic food
organic in conversion
certification
accreditation
regulation
standards
Organic production targets the development of a sustainable cultivation system and a variety of high-quality products with emphasis on environmental protection, biodiversity and high standards of animal protection. In South Africa, the organic sector pioneered private practices and systems in small informal groups to guide the public and private sectors on environmental and sustainability issues. A private certification system for organic products is applicable in the country consisting of network certification and third-party certification in collaboration with foreign and locally-based certification organisations. Local producers also use self-declaratory vendor claims associated with organic labels. A State auditor mechanism is nonetheless applicable with respect to the use of the term “free range” on labels for meat products. South African National Standards (SANS 1369) on Organic Agricultural Production and Processing (OAPP) have been drafted by the South African Bureau of Standards (SABS) but the final version has not yet been made public. There is presently no specific legislation on organic products in the country but draft regulations (under the Agricultural Product Standards Act) on the control and sale of organic products which have not yet been promulgated. With mainly a private organic food certification system, to what extent do South African organic food products respect rules of organic production? This paper looks into the organic food regulation in South Africa and examines how far this private sector mechanism for organic food certification is in need of State regulation.
Faculty of Law, North-West University, South Africa
2017-05-17
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/584
10.17159/1727-3781/2016/v19i0a584
Potchefstroom Electronic Law Journal; Vol. 19 (2016); 1-48
1727-3781
eng
https://perjournal.co.za/article/view/584/2631
https://perjournal.co.za/article/view/584/3050
https://perjournal.co.za/article/view/584/8252
Copyright (c) 2016 Odile Juliette Lim Tung
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/585
2019-04-15T07:08:24Z
per:ART
driver
Apartheid's Alcatraz: The Barberton Prison Complex During the Early 1980s - Part One
Peté, SA
Barberton Prison Complex
Barberton Prison Farm
prison violence
apartheid prisons
prison deaths
prison torture
prisoner heat exhaustion
heat exhaustion trial
The purpose of this two-part article is to examine in detail the public discourse surrounding the Barberton Prison Complex during the early 1980s, at the height of the apartheid era. The prisons within the Barberton Prison Complex were notorious as being among the most punitive of the many prisons within apartheid South Africa. Barberton was the place to which the most dangerous and intractable prisoners were sent to serve their sentences, making it apartheid's "Alcatraz". The focus of this article is on the treatment of "normal" as opposed to "political" prisoners during the period in question, allowing the "voices" of ordinary prisoners – often sidelined and silenced – to be brought to the fore. The Barberton Prison Complex is examined through the lens of public discourse, as reflected in a wide range of South African newspapers published at the time. By analysing a large number of reports dealing with events at Barberton during the period in question, in both English and Afrikaans language newspapers, as well as in both politically conservative and politically liberal newspapers, this article attempts to capture both the "smell" and the "feel" of what it was like to be imprisoned in one of apartheid's toughest prison complexes. Furthermore, this article seeks to show that – despite legislative measures restricting the publication of information on conditions inside apartheid prisons – the press was able to provide a steady stream of information to the South African public on the shocking events which occurred at Barberton during the period in question. Part One of this article 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, as well as the broader political implications of the criminal trial - known as the "heat exhaustion trial" - which followed. It is contended that the events surrounding the infamous "heat exhaustion trial" may be seen as a kind of metaphor for the apartheid system itself, as it began to unravel during the 1980s.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/585
10.4314/pelj.v18i2.07
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 274-305
1727-3781
eng
https://perjournal.co.za/article/view/585/446
https://perjournal.co.za/article/view/585/3101
https://perjournal.co.za/article/view/585/8427
Copyright (c) 2015 SA Peté
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/586
2021-07-26T12:11:28Z
per:ART
driver
Provisional Thoughts on Limitations to the Right to Procreate
Robinson, JA
Limitation of rights
right to procreate
overpopulation
limitation of the right to procreate
procreation
The constantly increasing human population results in severe ecological, psychological, political, economic and sociological ramifications. These negative implications raise the question whether 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 population is not kept "[d]own to the means of subsistence". An analysis of relevant constitutional provisions shows that in essence it is the "inner sanctum" of the individual which is shielded from erosion by conflicting rights of the community, and that the outward manifestation of the right (procreation) may indeed be limited. However, the so-called Chinese experience shows that negative measures have the desired results but also had a severe non-intended impact on the social and economic situation in China. It is suggested, therefore, that positive measures (eg proper education and social provision) be considered to limit population growth.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/586
10.4314/pelj.v18i2.09
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 332-361
1727-3781
eng
https://perjournal.co.za/article/view/586/447
https://perjournal.co.za/article/view/586/3103
https://perjournal.co.za/article/view/586/8428
Copyright (c) 2015 JA Robinson
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/587
2019-02-28T08:52:03Z
per:ART
driver
Making a Case for a Development-Driven Approach to Law as a Linchpin for the Post-2015 Development Agenda
Soyeju, O
Law
development
development-driven law
development law
development goals
development strategy
Millennium Development Goals
Millennium Declaration
Post-2015 development agenda
MDGs
The Millennium Development Goals (MDGs) are milestones on a long road to global development. They were adopted by consensus in 2000 as a policy framework to guide the global development process, ending poverty as the overarching goal. Time-bound, with quantified targets for addressing extreme poverty in its many dimensions, the goals have successfully drawn the attention of the world to the virulence of grinding poverty in low-income countries. However, with the deadline in plain sight it has become clear that many of the quantified targets set out in the Millennium Declaration (MD) in the year 2000 are no longer realistic. Recent reviews of the progress so far in achieving these goals suggest a marked discrepancy in outcomes across the regions. Besides, there are concerns that even if these set goals are met, new challenges have emerged with the potential of reversing whatever progress that has been made under the current development framework. For example, sub-Saharan Africa (SSA) as a region seems to be off-track in meeting these goals. While other regions of the world have made significant progress in achieving many of the goals, there is a widespread shortfall in the achievement of most of the MDGs in SSA countries. It is against this backdrop that there is an on-going process of articulating a new development agenda to consolidate and build on the successes of this current development framework, address new, pressing global concerns, and confront the shortfalls and gaps in the outcomes of the MDG framework. This paper argues that law has an inherent development function and can play a significant role in driving the proposed post-2015 development agenda. The paper therefore seeks to make a case for the adoption of a development-driven approach to law as a linchpin for the post-2015 development agenda.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/epub+zip
https://perjournal.co.za/article/view/587
10.4314/pelj.v18i2.10
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 362-396
1727-3781
eng
https://perjournal.co.za/article/view/587/451
https://perjournal.co.za/article/view/587/8429
Copyright (c) 2015 O Soyeju
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/588
2022-05-10T12:41:46Z
per:ART
driver
Section 294 of the Children's Act: Do Roots Really Matter?
Van Niekerk, C
Surrogacy
surrogate motherhood agreemen
intention to parent
genetic link
commissioning parents
infertile
Section 294 of the Children's Act 38 of 2005 currently only permits commissioning parents to engage in surrogacy arrangements in instances where they are able to provide a genetic link to their future offspring. This provision then excludes other infertile individuals, who due to the cause of their infertility are unable to provide genetic material, from engaging in surrogacy as a means of becoming parents, often at times when adoption as an alternative is not available to them. This article critically analyses section 294 and the issues it raises. In particular, it considers the constitutionality of section 294 and the remedies available to infertile parties who cannot meet the genetic link requirement. This article further considers the importance of genetic links in acquiring a child and the alternatives thereto, and concludes by proposing a way forward.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/588
10.4314/pelj.v18i2.11
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 397-428
1727-3781
eng
https://perjournal.co.za/article/view/588/448
https://perjournal.co.za/article/view/588/3104
https://perjournal.co.za/article/view/588/8430
Copyright (c) 2015 C Van Niekerk
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/589
2019-02-28T08:52:03Z
per:Note
driver
S v Litako 2014 SACR 431 (SCA): A Clarification on Extra Curial Statements and Hearsay
Lutchman, S
Confessions
informal admissions
hearsay
statutory interpretation
section 39(2) of the Constitution
On 16 April 2014, the Supreme Court of Appeal handed down judgment in the matter of S v Litako 2014 2 SACR 431 (SCA) ("Litako"). The judgment reconsiders the landmark decision of the same court, S v Ndhlovu 2002 2 SACR 325 (SCA) ("Ndhlovu") in which the court held that an informal admission made by one accused could be admitted against a co-accused even if the accused in court denies making the statement and the statement itself is therefore considered to be hearsay. The court in Ndhlovu applied section 3 of the Law of Evidence Amendment Act 45 of 1988 and found that the hearsay extra curial admission could be admitted in the interests of justice. In Litako the court found that section 3 did not overrule an existing common law rule, which is that the extra curial statement of an accused (whether an informal admission or a confession) cannot be tendered against a co-accused. This is because section 3 does not expressly overrule this common law rule. Rather, the provision itself requests that its application be subject to the common law. The judgment is important for various reasons. Firstly, it is generally in keeping with the existing rule on the cautionary treatment of accomplice evidence. Secondly, the judgment highlights the current confusion in the relationship between statute and common law with regards to informal admissions and confessions. Thirdly, the court employs methods of statutory interpretation to re-examine the principle from Ndhlovu and finds that the court in that case did not apply its mind correctly in disregarding the common law rule. The court undertook a teleological approach to interpretation by infusing the meaning of the words with the spirit, purport and objects of the Bill of Rights and found that the statute had not overruled the common law rule.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/589
10.4314/pelj.v18i2.12
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 429-448
1727-3781
eng
https://perjournal.co.za/article/view/589/449
https://perjournal.co.za/article/view/589/3106
https://perjournal.co.za/article/view/589/8425
Copyright (c) 2015 S Lutchman
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/590
2019-02-28T08:52:03Z
per:ART
driver
Apartheid's Alcatraz: The Barberton Prison Complex During the Early 1980s - Part Two
Peté, SA
Barberton Prison Complex
Barberton Prison Farm
prison violence
apartheid prisons
prison deaths
prison torture
prisoner heat exhaustion
heat exhaustion trial
The purpose of this two-part article is to examine in detail the public discourse surrounding the Barberton Prison Complex during the early 1980s, at the height of the apartheid era. The prisons within the Barberton Prison Complex were notorious as being among the most punitive of the many prisons within apartheid South Africa. Barberton was the place to which the most dangerous and intractable prisoners were sent to serve their sentences, making it apartheid's "Alcatraz". The focus of this article is on the treatment of "normal" as opposed to "political" prisoners during the period in question, allowing the "voices" of ordinary prisoners – often sidelined and silenced – to be brought to the fore. The Barberton Prison Complex is examined through the lens of public discourse, as reflected in a wide range of South African newspapers published at the time. By analysing a large number of reports dealing with events at Barberton during the period in question, in both English and Afrikaans language newspapers, as well as in both politically conservative and politically liberal newspapers, this article attempts to capture both the "smell" and the "feel" of what it was like to be imprisoned in one of apartheid's toughest prison complexes. Furthermore, this article seeks to show that – despite legislative measures restricting the publication of information on conditions inside apartheid prisons – the press was able to provide a steady stream of information to the South African public on the shocking events which occurred at Barberton during the period in question. Part Two of the article examines a string of violent incidents which occurred within the Barberton Prison Complex during the course of 1983, leading to nine inmate deaths. The response of the authorities to this orgy of violence at Barberton is discussed, including the findings of a committee of enquiry. It is concluded that the events at Barberton during the early 1980s were symptomatic of what was happening to the apartheid system as a whole. The South African penal system - in particular at its harshest extremity - acted as a kind of barometer, revealing both the cruelty of the system, as well as the considerable constraints and pressures under which it was operating.
Faculty of Law, North-West University, South Africa
2015-03-31
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/590
10.4314/pelj.v18i2.08
Potchefstroom Electronic Law Journal; Vol. 18 No. 2 (2015); 306-331
1727-3781
eng
https://perjournal.co.za/article/view/590/450
https://perjournal.co.za/article/view/590/3105
https://perjournal.co.za/article/view/590/8431
Copyright (c) 2015 SA Peté
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/592
2019-02-28T08:52:17Z
per:ED
driver
Editorial
Rautenbach, Christa
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
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Editorial
application/pdf
https://perjournal.co.za/article/view/592
10.17159/1727-3781/2015/v18i3a592
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015)0
1727-3781
eng
https://perjournal.co.za/article/view/592/453
Copyright (c) 2015 Christa Rautenbach
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/594
2019-02-28T08:52:17Z
per:ART
driver
The AU Model Law on Universal Jurisdiction: An African Response to Western Prosecutions based on the Universality Principle
Dube, A
The African continent has been consistent in placing its concerns regarding the manner in which international criminal justice is administered on the international platform. For the past decade, the continent has minced no words about its misgivings concerning the use of universal jurisdiction (UJ) by both foreign States and the International Criminal Court (ICC). The African Union (AU) has been very supportive of UJ and its utility in fighting impunity and affording justice to victims of the core crimes of international law, namely, genocide, war crimes and crimes against humanity. Often referred to as core crimes, these are regarded as customary law crimes which are an affront to entire humankind. These crimes were also codified by the Rome Statute of the ICC. However, the political and selective use of the principle of universality by foreign States to prosecute perpetrators of these crimes was seen as causing conflicts and undermining peace efforts, reconciliation and regional stability. As a result the African continent voiced its concerns at various public platforms, including under the auspices of the UN and it therefore called for reforms. This prompted the AU to produce its own model law on UJ, which African States could adapt to their own socio-political circumstances and legal context. The debates that ensued around UJ on the African continent offered African States a chance to contribute to the development of international law, especially on the rules concerning UJ. This paper analyses the interaction amongst African states that eventually led to the development of UJ regulations within their individual legal systems, and tries to determine if there is indeed an African signature in those legal rules.
Faculty of Law, North-West University, South Africa
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/594
10.4314/pelj.v18i3.01
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015); 449-486
1727-3781
eng
https://perjournal.co.za/article/view/594/454
https://perjournal.co.za/article/view/594/3107
https://perjournal.co.za/article/view/594/8514
Copyright (c) 2015 A Dube
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/595
2019-04-15T07:14:07Z
per:ART
driver
Selected Legal Challenges Relating to the Military use of Outer Space, with Specific Reference to Article IV of the Outer Space Treaty
Ferreira-Snyman, A
Aggression
militarisation
Outer Space Treaty
peaceful purposes
satellite
self-defence
soft law
space debris
space security
space weapon
use of force
weaponisation
Since the end of the Second World War the potential use of outer space for military purposes persisted to be intrinsically linked to the development of space technology and space flight. The launch of the first artificial satellite, Sputnik 1, by the USSR in 1957 made Western states realise that a surprise attack from space was a real possibility, resulting in the so-called "space-race" between the USA and the USSR. During the Cold War space activities were intrinsically linked to the political objectives, priorities and national security concerns of the USA and the Soviet Union. After the Cold War the political relevance and benefits of space continued to be recognised by states. In view of the recent emergence of new major space powers such as China, the focus has again shifted to the military use of outer space and the potential that a state with advanced space technology may use it for military purposes in order to dominate other states. Article IV of the Outer Space Treaty prohibits the installation of nuclear weapons and weapons of mass destruction in outer space and determines that the moon and other celestial bodies shall be used for peaceful purposes only. Due to the dual-use character of many space assets, the distinction between military and non-military uses of outer space is becoming increasingly blurred. This article discusses a number of legal challenges presented by article IV of the Outer Space Treaty, relating specifically to the term peaceful, the distinction between the terms militarisation and weaponisation and the nature of a space weapon. It is concluded that article IV is in many respects outdated and that it cannot address the current legal issues relating to the military use of outer space. The legal vacuum in this area may have grave consequences not only for maintaining peace and security in outer space, but also on earth. Consequently, an international dialogue on the military uses of outer space should be facilitated under the auspices of the UNCOPUOS to address these uncertainties as a matter of urgency. Although it is agreed with the proponents of a hard law approach that a legally binding instrument should be adopted to regulate the military use of outer space, it is submitted that, as an interim measure, soft law guidelines should be developed to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use of outer space.
Faculty of Law, North-West University, South Africa
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/595
10.4314/pelj.v18i3.02
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015); 487-529
1727-3781
eng
https://perjournal.co.za/article/view/595/455
https://perjournal.co.za/article/view/595/3108
https://perjournal.co.za/article/view/595/8515
Copyright (c) 2015 A Ferreira-Snyman
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/596
2019-04-15T07:14:37Z
per:ART
driver
No longer in suspense: Clarifying the Human Rights Jurisdiction of the SADC Tribunal
Phooko, MR
Human Rights
Jurisdiction
SADC Tribunal
International Court of Justice
The Southern African Development Community Tribunal's (SADC Tribunal) decision in the matter of Mike Campbell (Pvt) Ltd v Republic of Zimbabwe 2008 SADCT 2 (28 November 2008) demonstrated its ability to utilise the principles contained in the Treaty of the Southern African Development Community when it ruled that it had the power and competency to adjudicate over a human rights case. The aforesaid decision was hailed by many scholars as a progressive judgment in the SADC region that would promote the rule of law and ensure that member states respected their treaty obligations in their own territories. Unfortunately, the same judgment resulted in the suspension of the SADC Tribunal in 2010 because it had purportedly acted beyond its mandate when it adjudicated over a case concerning a human rights dispute. This article investigates whether the SADC Tribunal had jurisdiction to deal with cases involving allegations of human rights violations. In addressing this question, this article will discuss the powers (implied and tacit) of international organisations as understood within international law. In addition, the study will ascertain how the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia have dealt with cases that involved disputes concerning a tribunal or an international organisation that was said to have acted beyond its mandate. The study will also make reference to the East African Court of Justice and the Economic Community of West African States Court of Justice as they have also dealt with implied powers when they were confronted with cases concerning human rights abuses. Certain decisions of the SADC Summit of Heads of States or Government (Summit) and the Council of Ministers whose roles include the control of functions and/or overseeing the functioning of the SADC will also be referred to in this study.
Faculty of Law, North-West University, South Africa
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/596
10.4314/pelj.v18i3.03
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015); 530-567
1727-3781
eng
https://perjournal.co.za/article/view/596/456
https://perjournal.co.za/article/view/596/3109
https://perjournal.co.za/article/view/596/8516
Copyright (c) 2015 MR Phooko
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/597
2019-02-28T08:52:17Z
per:ART
driver
Affiliation to a New Customary Law in Post-Apartheid South Africa
Nwauche, ES
Customary Law
Post-Apartheid
Acquisition of Customary Law
Citizenship
Sub-national Identit
This article examines the possibility that in the post-apartheid South African legal system South African citizens can voluntarily change their customary law and affiliate to a new one in the true spirit of citizenship. The article argues that such a change would affirm the dignity of all South Africans and would significantly enhance the vision of a truly non-racial society envisaged by the Constitution and contribute to social justice.
Faculty of Law, North-West University, South Africa
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/597
10.4314/pelj.v18i3.04
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015); 568-592
1727-3781
eng
https://perjournal.co.za/article/view/597/457
https://perjournal.co.za/article/view/597/3110
https://perjournal.co.za/article/view/597/8517
Copyright (c) 2015 ES Nwauche
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/598
2019-04-12T06:21:52Z
per:ART
driver
The Employment Equity Act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid South Africa) (Part 1)
Louw, AM
Affirmative action
(substantive) equality
(demographic) representivity
Employment Equity Act
1998
section 9 Bill of Rights
unfair discrimination
quotas
numerical targets
SAPS v Solidarity obo Barnard
Minister of Finance v van Heerden
The author critically examines the organising principle of the affirmative action provisions of the Employment Equity Act (or EEA), as well as the implications of the recent judgment by the Constitutional Court in its first case involving the application of affirmative action in the employment context (and in terms of the EEA) – SAPS v Solidarity obo Barnard. While reiterating the need for restitutionary measures such as affirmative action in South Africa, the author concludes – probably quite controversially - that the EEA's treatment of affirmative action has nothing to do with the equality right in the Bill of Rights, and that the Act pursues a different (and omnipresent) social engineering agenda by the state. The author calls for this realisation to prompt future affirmative action cases arising from the application of this Act to be removed from the scheme of (and potential defences available under) the equality jurisprudence, and for the courts to critically interrogate the constitutionality of the EEA's affirmative action scheme within its own context. The author believes that Chapter III of the Act is unconstitutional in this sense, and he calls for the scrapping of its provisions. He also calls for a (more) constitutionallycompliant exposition from the Constitutional Court of the parameters of legitimate affirmative action under the Bill of Rights, and adds his voice to the numerous calls for reconsideration of the "rationality test" expounded in Minister of Finance v van Heerden. More generally, the author considers the apparently all-pervasive application of the government ideology of the pursuit of demographic representivity in "transformation" of employment and other contexts (expressing grave doubts about its constitutionality along the way). This article forms Part 1 of this piece and the author considers the constitutional requirements for a legitimate affirmative action programme or measure. He then examines the affirmative action scheme of the Employment Equity Act, and explains his views on why such scheme is, in fact, unconstitutional. In Part 2 of this piece (which follows in this edition), the author continues to critically evaluate the Constitutional Court judgment in the Barnard case, and he highlights the biggest areas of disappointment of this judgment within the context of South Africa's equality jurisprudence. After a very brief consideration of the recent amendments to the Employment Equity Act, the author concludes by providing reasons why the Act's approach to affirmative action needs to be rejected, and soon.
Faculty of Law, North-West University, South Africa
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
https://perjournal.co.za/article/view/598
10.4314/pelj.v18i3.05
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015); 668-733
1727-3781
eng
https://perjournal.co.za/article/view/598/458
https://perjournal.co.za/article/view/598/3116
Copyright (c) 2015 AM Louw
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/599
2017-09-15T13:46:48Z
per:ART
driver
oai:journals.assaf.org.za:article/600
2019-04-15T07:17:14Z
per:Note
driver
Questioning the use of the Mandament van Spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC)
Boggenpoel, ZT
Property
remedies
constitutional development
This cursory note reflects on the outcome of the Constitutional Court judgment of Ngqukumba v Minister of Safety and Security. The decision presented the Court with the opportunity to consider what happens to existing common law remedies in light of legislation that has been enacted to regulate a specific area of the law. The Constitutional Court held that the Traffic Act did not place an absolute prohibition on the possession of tampered vehicles and therefore the Court granted the spoliation remedy. The Court’s conclusion that the mandament van spolie is in principle available in these instances, creates the impression that the common law remedy would be appropriate even though the Criminal Procedure Act (CPA) contains a remedy to claim the property back. This note argues that such a conclusion is problematic. If the CPA has a remedy to restore possession, that option should first be exhausted. In this regard, it is necessary to regulate the choice of remedy if the common law and the legislation provide a remedy to vindicate the violations of rights. Furthermore, in instances where legislation has been enacted to regulate a specific area of the law (or to give effect to a constitutional provision) the mandament van spolie should in principle not be available. Finally, this note concludes that in instances where the Traffic Act prohibits possession of certain vehicles, it should not be possible to use the mandament van spolie to by-pass the legislation.
Faculty of Law, North-West University, South Africa
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/600
10.4314/pelj.v18i3.07
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015); 734-754
1727-3781
eng
https://perjournal.co.za/article/view/600/460
https://perjournal.co.za/article/view/600/3117
https://perjournal.co.za/article/view/600/8518
Copyright (c) 2015 ZT Boggenpoel
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/601
2019-04-15T07:17:46Z
per:Note
driver
A Critical Appraisal of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC)
Kruger, P
Disability
Western Cape Forum for Intellectual Disability v Government of The Republic of South Africa
substantive equality
Education White Paper 6
Special Needs Education
White Paper 6
Right to Education
Integrated National Disability Strategy
The 2011 the Western Cape Forum for Intellectual Disability v Government of The Republic of South Africa case flagged a lot of issues faced by persons with disabilities relating to access to education in South Africa. The case tackled certain perceptions about the ineducability of persons with profound and severe disability and the remaining charity-oriented perception by the South African Department of Basic Education. While the court made several important points in advancing universal access to education, the author argues that certain holes in the judgment hinders the existence of judicial finding truly infused with concerns of substantive equality. An example of this short-coming is the court's consideration of reasonableness when the right to basic education is an immediately realisable right. The author also argues that the South African developments in education policy for persons with disability, while positive, is insufficient to truly give effect to substantive equality – the claim to equality being made in the new constitutional dispensation. There is still an attitude that is too permissive of separating students based on abilism. The social model of thinking about requires a complete transformation of the education system that would not require a classification of learners by abilities but have a different constitution so as to accommodate all students and not unduly enable one group over another. The author considers the approaches from Canada and India to explore its responses to education for students with varying levels of ability. Canada's similar conception of equality and India's influence on South African constitutionalism and shared experience with massive equality gaps make these jurisdictions instructive.
Faculty of Law, North-West University, South Africa
2015-04-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/601
10.4314/pelj.v18i3.08
Potchefstroom Electronic Law Journal; Vol. 18 No. 3 (2015); 755-773
1727-3781
eng
https://perjournal.co.za/article/view/601/461
https://perjournal.co.za/article/view/601/3118
https://perjournal.co.za/article/view/601/8519
Copyright (c) 2015 P Kruger
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/602
2019-02-28T08:52:31Z
per:ED
driver
Editorial
Rautenbach, Christa
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
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Editorial
application/pdf
https://perjournal.co.za/article/view/602
10.17159/1727-3781/2015/v18i4a602
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 0-0
1727-3781
eng
https://perjournal.co.za/article/view/602/462
Copyright (c) 2015 Christa Rautenbach
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/603
2019-02-28T08:52:31Z
per:Ora
driver
The Life and Times of a Learned Jackal for Justice
Du Plessis, L
Noscitur a sociis. You are known by the company you keep. Aan jou vriende word jy geken.
If this saying holds, my friends, then I, your guest of honour at this auspicious occasion, am a human being beyond compare, and perhaps even a semblance of the laureate so profusely showered with your praises today. However, acceding to honest introspection, I fully reckon with the possibility that the proverb may be amiss and at any rate not applicable to me. But let me first speak the following words in bold before I say anything more: “My friends, thank you, simply but sincerely, for your unfaltering camaraderie through the years, as together we negotiated the labyrinth that is académe; for your enthusiasm to walk many an extra mile with me and, in sum, for your amicable and caring involvement in the fulfilment of what to me has been a thoroughly gratifying career (so far).
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Invited Presentation
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/603
10.4314/pelj.v18i4.01
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 774-781
1727-3781
eng
https://perjournal.co.za/article/view/603/463
https://perjournal.co.za/article/view/603/3119
https://perjournal.co.za/article/view/603/8521
Copyright (c) 2015 L Du Plessis
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/604
2019-02-28T08:52:31Z
per:ART
driver
Lessons for the SADC from the Indian Case of Novartis AG v Union of India
Ndlovu, L
Access to medicines
evergreening
incremental patenting
intellectual property rights
TRIPS flexibilities
Southern African Development Community
In the pharmaceutical context, many Southern African Development Community (SADC) members grant patents on drugs without substantially reviewing applications first, thus routinely granting patents for new versions of old medicines, thus extending patent life beyond the normal 20-year period. In contrast, Brazil and India, homes to major generic drug manufacturers in the BRICS grouping, examine each application before a patent is granted. It has been argued by health activists and academics that excessive patenting results in too many patents for minor innovations in medical technology and this in turn leads to higher prices of medicines, thus frustrating SADC citizens' right to access affordable essential medicines. This paper highlights how the legislative inclusion of World Trade Organisation (WTO) Trade Related Aspects of Intellectual Property Rights (TRIPS) flexibilities around the requirements for patentability can be effectively used to curb incremental patenting and limit the proliferation of evergreen patents. This is achieved through a critical analysis the 2013 Supreme Court of India case of Novartis AG v Union of India before extracting useful lessons for the SADC. The highlighted lessons will in all likelihood inform the current intellectual law reform projects in most SADC members, including South Africa.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/604
10.4314/pelj.v18i4.02
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 782-815
1727-3781
eng
https://perjournal.co.za/article/view/604/464
https://perjournal.co.za/article/view/604/3120
https://perjournal.co.za/article/view/604/8524
Copyright (c) 2015 L Ndlovu
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/605
2019-02-28T08:52:31Z
per:ART
driver
The Independence of South African Judges: A Constitutional and Legislative Perspective
Siyo, L
Mubangizi, JC
Judiciary
judicial independence
legislation
Constitution
impartiality
bias
judicial appointments
security of tenure
remuneration
complaints
courts
Judicial independence is fundamental to democracy. It is in that context that this paper considers whether the existing constitutional and legislative mechanisms provide sufficient judicial independence to South African judges. In so doing, the paper focuses on impartiality, judicial appointments and security of tenure. It also discusses the sensitive matter of complaints and disciplinary proceedings against judges and their removal from office. The issue of the remuneration of judges is also explored. In discussing the challenges facing judicial independence some incidents that have appeared to compromise such independence are highlighted. These include the controversial appointments of Advocate Mpshe as an acting judge in the North West Province in 2010 and Judge Heath as the Head of the Special Investigative Unit (SIU) in 2011. The never-ending controversy surrounding the Cape Judge President John Hlophe and his alleged attempts to improperly influence two Constitutional Court judges in a case involving President Jacob Zuma is also highlighted. Another issue that has brought judicial independence into sharp focus is the June 2015 visit to South Africa of Sudan's President Omar al-Bashir, who was on a warrant of arrest from the International Criminal Court (ICC) for genocide and war crimes in the Darfur region of Sudan. A decision by the North Gauteng High Court on his presence in South Africa and the attacks on the judiciary made by various government officials as a result are discussed. Several conclusions are drawn but in the main, it is generally concluded that the constitutional and legislative framework adopted by South Africa sufficiently insulates judges from improper influence. However, there have been several notable challenges that particularly relate to judicial appointments and how the JSC has handled certain matters. Irresponsible and uninformed political statements by politicians and unwarranted political attacks on the judiciary by government are also a source of great concern. These challenges could and should be construed as threats to judicial independence, and need to be comprehensively and properly addressed.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/605
10.4314/pelj.v18i4.03
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 816-846
1727-3781
eng
https://perjournal.co.za/article/view/605/465
https://perjournal.co.za/article/view/605/3121
https://perjournal.co.za/article/view/605/8523
Copyright (c) 2015 L Siyo, JC Mubangizi
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/606
2019-04-15T07:21:33Z
per:ART
driver
Rethinking Violence, Reconciliation and Reconstruction in Burundi
Ndimurwimo, LA
Mbao, MLM
Armed violence
human rights violations
reconciliation and reconstruction
post-conflict Burundi
Armed violence and genocide are among the on-going problems that are still facing contemporary Africa and the world. In the aftermath of the outrages, devastation and appalling carnage of the Second World War, member states of the United Nations (UN) undertook radical steps, inter alia, "to save succeeding generations from the scourge of war and to reaffirm faith in fundamental human rights". Subsequently, the International Bill of Human Rights was proclaimed in order to lay down international human rights norms and standards of conduct and to prevent the recurrence of mass killings. Although Burundi is a State Party to the UN and African Union and is a signatory to a number of international and regional human rights treaties, the post-colonial history of Burundi is an epic tale of indescribable human suffering and misery as a result of systematic mass killings. At least every family or household in Burundi has been negatively affected by the mass killings of the 1960s, 1972, 1988 and 1990s, which have created a significant number of refugees and internally displaced persons (IDPs).This article traces the root causes of Burundi's systemic armed violence and argues that despite several UN Security Council Resolutions and peace agreements aimed at national reconciliation and reconstruction, mass killings and other heinous crimes remain unaddressed. The article recommends that a comprehensive transitional justice model is required in post-conflict Burundi in order to bring about national reconciliation, healing and reconstruction.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/606
10.4314/pelj.v18i4.04
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 847-900
1727-3781
eng
https://perjournal.co.za/article/view/606/466
https://perjournal.co.za/article/view/606/3122
https://perjournal.co.za/article/view/606/8525
Copyright (c) 2015 LA Ndimurwimo, MLM Mbao
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/607
2019-02-28T08:52:31Z
per:ART
driver
A Contextual Analysis of the Hate Speech Provisions of the Equality Act
Marais, ME
Pretorius, JL
Hate speech
unfair discrimination
categorical prohibition
freedom of expression
human dignity
bona fide
publish
information
harmful
heal
The article presents a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Equality Act. It is argued that this provision is not primarily intended to describe and effectively regulate the extreme expression that falls within the narrow ambit of "hate speech" as defined in section 16(2)(c) of the Constitution. Rather, it is concerned with the promotion of equality in the broad societal context. It acknowledges the hurt and harm that discriminatory expression may entail and it condemns the reinforcement of systemic discrimination by means of expression. Therefore, the principal interpretive frame of reference for the analysis of section 10(1) of the Equality Act is the explicit constitutional obligation in terms of sections 9(3) and (4) of the Constitution to enact legislation to prevent and prohibit unfair discrimination, and not section 16(2)(c) of the Constitution. The fact that section 10(1) categorically prohibits hate speech, instead of premising its prohibition on the unfairness analysis generally applicable to discrimination in other contexts, however, implies that only expression with no reasonable prospect of meeting the constitutional fairness standard ought to be covered by section 10. Put differently, the prohibited expression may in no way promote rather than jeopardise the achievement of equality. The interpretation takes into account that section 10(1) applies only to engagement in expression that, in terms of an objective reasonableness assessment, is clearly primarily aimed at hurting or harming others, or at inciting others to hurt or harm, or at promoting hatred based on group identity. Furthermore, bona fide expression in accordance with the essential characteristics of the freedoms of expression mentioned in section 16(1) of the Constitution is explicitly excluded from its ambit. An analysis of the expression covered by section 10(1) leads to a conclusion that it prohibits only low-value discriminatory expression that obstructs the constitutional quest for the healing of our injured society. It manages to achieve this without jeopardising the constitutional guarantee of freedom of expression, construed in the light of the foundational values of the Constitution.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/607
10.4314/pelj.v18i4.05
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 901-942
1727-3781
eng
https://perjournal.co.za/article/view/607/467
https://perjournal.co.za/article/view/607/3123
https://perjournal.co.za/article/view/607/7818
Copyright (c) 2015 ME Marais, JL Pretorius
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/608
2019-02-28T08:52:31Z
per:ART
driver
Public Participation and Water Use Rights
King, P
Reddell, C
Administrative action
administrative justice
environmental law
environmental rights
constitutional law
constitutional rights
integrated environmental authorisations
One Environmental System
procedural fairness
public participation
The conservation and protection of water resources is paramount in the safeguarding of environmental rights and the attainment of sustainable development in South Africa. Although the National Water Act 36 of 1998 (the NWA) seeks to provide a framework for ensuring the sustainable use of water resources, its application has been hindered by capacity and enforcement constraints, a legacy of water pollution (primarily as a result of mining and industrial activities), and poor resource management. To aggravate this situation, the difficulties in effectively implementing the NWA are exacerbated by inadequate public participation in water use licensing processes. Public participation in environmental decision-making has increasingly received recognition for its role in ensuring administrative justice and the protection of environmental rights. While environmental legislation (in many cases) sets out procedures for ensuring that public views are taken into account in environmental decision-making processes, the judiciary has also recognised the pivotal role of public engagement in ensuring administrative justice where environmental rights are at stake. Sound public participation practices play an important role in identifying issues requiring consideration in the context of environmental assessment processes, as well as in ensuring that communities are empowered to monitor, identify and report on potential contraventions of environmental legislation. Water is a vital natural resource which is under significant pressure in South Africa. In the circumstances, effective public participation is crucial to ensuring the protection and equitable use of water resources. It follows that provision for comprehensive public engagement in water use licensing processes is integral to ensuring the sustainable management of water resources. While provision is made in the NWA for public engagement in the context of water use licensing processes, such participation is limited, and in some cases discretionary. This, in turn, has the effect of curtailing the right to an administrative appeal in respect of a decision by the competent authority to grant water use rights. This paper will explore the role of public participation in environmental decision-making with a view to identifying the shortcomings of the NWA in this regard, as well as the effectiveness of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) in supplementing the NWA's shortcomings. It will also consider the implications which recent changes to South Africa's environmental legal framework will have for public participation in water use licensing, particularly in the context of mining-related activities.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/608
10.4314/pelj.v18i4.06
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 943-968
1727-3781
eng
https://perjournal.co.za/article/view/608/468
https://perjournal.co.za/article/view/608/3124
https://perjournal.co.za/article/view/608/8526
Copyright (c) 2015 P King, C Reddell
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/609
2019-04-11T13:31:24Z
per:ART
driver
Legislation as a Critical Tool in addressing Social Change in South Africa: Lessons from Mayelane v Ngwenyama
Ozoemena, RN
Living law
consent
legislation
social change
customary law
gender justice
customary marriages
Several changes have occurred in South Africa within the customary law system to ensure gender justice, including the enactment of the Recognition of Customary Marriages Act 120 of 1998. The purpose of the Recognition Act is to recognise customary marriages as valid in law with equal status and capacity within the marriage for the parties to the marriage, and to regulate customary marriages. This has brought about changes to this social institution in an arena that is steeped in tradition and deep-rooted cultural practice. In 2013 the Constitutional Court in the Mayelane case developed the Xitsonga customary law to include the requirement of the consent of the first wife prior to her husband's taking another wife. This case yet again highlighted the difficulties that surround the practicalities of balancing the tripartite scheme of statutory, constitutional and living law. It remains a challenge for the Courts to determine the norms of African people. Hence the need for proper and much more vigorous engagement with the living law of the people.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/609
10.4314/pelj.v18i4.07
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 969-992
1727-3781
eng
https://perjournal.co.za/article/view/609/469
https://perjournal.co.za/article/view/609/3125
https://perjournal.co.za/article/view/609/8527
Copyright (c) 2015 RN Ozoemena
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/610
2019-04-11T13:35:14Z
per:ART
driver
Public-private Partnerships in Local Disaster Management: A Panacea to all Local Disaster Management Ills?
Van der Berg, A
Local government
local disaster management
disaster management
public-private partnerships
It is anticipated that the occurrence and intensity of disasters will increase globally and in South Africa where typical disasters include droughts, floods, extreme hailstorms, gales, fires and earthquakes, as well as sinkholes arising from mining activity in dolomitic areas. Disasters such as these result in human suffering and damage to the resources and infrastructure on which South Africans rely for their survival and the maintenance of their quality of life. Section 24 of the Constitution of the Republic of South Africa, 1996 affords to everyone the right to an environment that is not harmful to his or her health and well-being. It may be argued that a person's sense of environmental security in relation to the potential risks and dangers of disaster falls within the scope of the protection provided by section 24. The responsibility to intervene for the protection of the interests inherent in the constitutional environmental right lies with the government of South Africa. Disaster management specifically is a functional area of competence of national and provincial government, but practice has shown that the actual implementation of and planning for disaster management happens in the local government sphere. Against the backdrop of these introductory discussions and, given the fact that several municipalities in South Africa are under-resourced, this article very specifically aims to critically discuss and describe from a legal perspective the potential and function of public-private partnerships (PPPs) between local government (municipalities) and the private sector (such as industries) in fulfilling the legally entrenched disaster management mandate of municipalities. Through a critical evaluation of some existing PPPs, this article illustrates that the private sector has a key role to play in assisting municipalities to fulfil their legally entrenched disaster management mandate.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/610
10.4314/pelj.v18i4.08
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 993-1033
1727-3781
eng
https://perjournal.co.za/article/view/610/470
https://perjournal.co.za/article/view/610/3126
https://perjournal.co.za/article/view/610/8528
Copyright (c) 2015 A Van der Berg
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/611
2019-02-28T08:52:31Z
per:ART
driver
The Constitutional Mandate for Social Welfare – Systemic Differences and links between Property, Land Rights and Housing Rights
Van der Walt, AJ
Viljoen, S
Property law
constitutional property law
land law
land reform
restorative justice
housing law
constitutional interpretation
Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights and housing rights. Our argument is shaped by the fact that these three sets of rights are recognised and protected separately in the Constitution of the Republic of South Africa, 1996, but we argue that the theoretical differences go beyond variations between constitutions and bills of rights from different traditions and time periods. In our view, there are sound theoretical, and therefore also systemic, reasons why it is necessary to at least keep the differences between property, land rights and housing rights in mind when analysing, interpreting and applying any of these rights in a specific constitutional text. Above all, we argue that the reduction of housing rights to just another category of property rights might well reduce or even erode the special social, historical and constitutional value and meaning of housing rights. We first consider theoretical arguments concerning the relationship between property, land rights and social welfare. In view of the theoretical analysis we proceed to consider the constitutional nature and status of property, land rights and housing rights in the South African context. We argue that both land rights (in the form of land redistribution and improved tenure security) and housing rights (in the form of the right of access to adequate housing) should be seen as discrete constitutional rights that stand on their own constitutional foundations and that they do not need to be protected as property rights. On the other hand, they are not fundamentally circumscribed or opposed by property rights either. Instead, the Constitution requires a new, typically constitutional methodology that gives full recognition and effect to all three sets of rights, each in its proper place. Seen in this perspective, property is neither the guardian nor the enemy of social welfare. Nevertheless, the purpose of the property clause in general cannot be isolated from social welfare concerns that relate to improved access to land and housing rights, nor from the constitutional imperative to provide stronger land and housing rights. Important connections exist between these divergent constitutional imperatives that should be acknowledged to ensure the efficient realisation of social welfare concerns.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/epub+zip
https://perjournal.co.za/article/view/611
10.4314/pelj.v18i4.09
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 1034-1090
1727-3781
eng
https://perjournal.co.za/article/view/611/471
https://perjournal.co.za/article/view/611/8529
Copyright (c) 2015 AJ Van der Walt, S Viljoen
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/612
2019-02-28T08:52:31Z
per:ART
driver
The Consumer Protection Act 68 of 2008 and Procedural Fairness in Consumer Contracts
Stoop, PN
Consumer protection
unfair contracts
contractual fairness
procedural fairness
In general, the concept "contractual fairness" can be narrowed down, described and analysed with reference to the two interdependent types of fairness – substantive and procedural fairness. Measures aimed at procedural fairness in contracts address conduct during the bargaining process and generally aim at ensuring transparency. One could say that a contract is procedurally fair where its terms are transparent and do not mislead as to aspects of the goods, service, price and terms. Despite the noble aims of legislative measures aimed at procedural fairness there are certain limits to the efficacy of procedural measures and transparency. 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 fair are analysed in this article, as are other measures contained in the Act, which may also increase procedural fairness, and are discussed so as to allow suppliers to predict whether their contracts will be procedurally fair or not in terms of the Act. The special procedural measures can be categorised under measures requiring disclosure and/or mandatory terms, and measures addressing bargaining position and choice. It is concluded that owing to the nature of all these factors and measures related to procedural fairness, it is clear that openness and transparency are required by the CPA.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/612
10.4314/pelj.v18i4.10
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 1091-1124
1727-3781
eng
https://perjournal.co.za/article/view/612/472
https://perjournal.co.za/article/view/612/3127
https://perjournal.co.za/article/view/612/8531
Copyright (c) 2015 PN Stoop
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/613
2019-04-12T06:02:17Z
per:ART
driver
Judicial "Translation" and Contextualisation of Values: Rethinking the Development of Customary Law in Mayelane
Lewis, I
Pluralism
customary law
international and constitutional rights law
role of courts
polygynous marriage
women
dignity
The relevance of Mayelane v Ngwenyama (2013 4 SA 415 (CC)) has not been exhausted. Particularly the constitutional mandate undertaken by the Constitutional Court to "develop" customary law deserves closer scrutiny. In Mayelane the Constitutional Court, in seeking to vindicate the dignity and equality of women in polygynous marriages, examines the validity of a second marriage in terms of "living" customary law. The Court applies customary law as a "primary" source of law, while it simultaneously promotes the values enshrined in the Constitution, however – bearing in mind that the constitutional values of dignity and equality have their roots in international rights law – the Court is in reality dealing with normative plurality spanning subnational (customary), national as well as international regimes. Furthermore, each of these systems is embedded in its own socio-cultural context, and therefore the liberal individualism of international law could be "foreign" in a customary context, which values communalism. Hence, it is asked whether courts can accommodate pluralism by simply transposing norms and values such as dignity and equality from one system to another, particularly in cases where the court sets out to "develop" customary law. It is argued that norms and values have to be interpreted and applied with reference to their particular context and audience. Thus, there is a need for courts to contextualise and attune, or "translate" norms, whenever they are applied to another system.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/613
10.4314/pelj.v18i4.11
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 1125-1160
1727-3781
eng
https://perjournal.co.za/article/view/613/473
https://perjournal.co.za/article/view/613/3128
https://perjournal.co.za/article/view/613/8532
Copyright (c) 2015 I Lewis
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/614
2019-02-28T08:52:31Z
per:ART
driver
Avoiding Mazibuko: Water Security and Constitutional Rights in Southern African Case Law
Couzens, E
Access to water
City of Cape Town v Strümpher
Mazibuko v City of Johanesburg
Mushoriwa v City of Harare
spoliation
water rights
The 2009 judgment by the Constitutional Court of South Africa in Mazibuko v City of Johannesburg is seen by many as a watershed in the interpretation of the fundamental constitutional right of access to water. The Constitutional Court ruled that the right of access to sufficient water does not require that the state provide every person upon demand and without more with sufficient water. Nor does the obligation confer on any person a right to claim "sufficient water" from the state immediately. Reactions to the judgment have been consistently negative, with criticisms largely focusing on the Court's apparent lack of appreciation for the situation of the very poor. It is not easy, however, to overturn a decision of the Constitutional Court and South Africa will need to work within the constraints of the precedent for many years to come. It is suggested in this article that two subsequent, recent judgments (one of the Supreme Court of Appeal in South Africa, City of Cape Town v Strümpher, 2012, and one of the High Court in Zimbabwe, Mushoriwa v City of Harare, 2014) show how it might be possible for courts to avoid the Mazibuko precedent and yet give special attention to water-related rights. Both cases concerned spoliation applications in common law, but both were decided as though access to water supply and water-related rights allow a court to give weight to factors other than the traditional grounds for a spoliation order. It can be argued that in both cases the unlawfulness necessary for a spoliation order arose from a combination of dispossession and breach of rights in respect of a very particular and special kind of property. In the arid and potentially water-stressed Southern African region, and in the context of extreme and apparently increasing poverty, there will undoubtedly be more court cases to come involving access to water. Conclusions are drawn as to how the two judgments considered might offer a way to ameliorate the harsh effects of the Mazibuko judgment.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/614
10.4314/pelj.v18i4.12
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 1161-1186
1727-3781
eng
https://perjournal.co.za/article/view/614/474
https://perjournal.co.za/article/view/614/3129
https://perjournal.co.za/article/view/614/8533
Copyright (c) 2015 E Couzens
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/615
2019-04-15T07:45:26Z
per:ART
driver
The Incorporation of Double Taxation Agreements into South African Domestic Law
Du Plessis, I
Double taxation agreement
income tax
self-executing
taxation
treaty
treaty override
There are different opinions as to the process whereby double taxation agreements (DTAs) are incorporated into South African law. This contribution aims to discuss some of the existing opinions and to offer a further perspective on the matter. At the heart of the debate lies the interpretation of two provisions, namely section 231 of the Constitution of the Republic of South Africa and section 108 of the Income Tax Act and the interaction between the two. This contribution argues that South Africa's DTAs are not self-executing (a term referred to in section 231(4) of the Constitution) and should therefore be enacted into law by national legislation. It is furthermore argued that section 108(2) of the Income Tax Act enables a DTA to be incorporated into South African domestic law, by means of publication in the Government Gazette. An analysis of the case law supports this argument. Whether or not DTAs are regarded as self-executing, the status of a DTA in relation to the Income Tax Act still has to be determined. In other words, once the DTA forms part of South African domestic law, does it rank higher, lower or on a par with the Income Tax Act? It is submitted that the status of DTAs in South Africa is determined by the Constitution. It is furthermore submitted that South Africa's DTAs do not attain a status on the same level as the Constitution and that the Constitution allows for the possibility that South Africa's DTAs may be overridden by subsequent legislation (for example, by amendments to the Income Tax Act). Whether or not an override will take place in a specific case should, it is submitted, be determined by the application of the principles of statutory interpretation which apply in the case of conflict. Although this latter submission finds support in the minority judgement in Glenister, both the AM Moolla and Tradehold decisions express contrary views. The hope is expressed that the South African courts will provide clarity on this matter in due course.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
https://perjournal.co.za/article/view/615
10.4314/pelj.v18i4.13
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 1187-1204
1727-3781
eng
https://perjournal.co.za/article/view/615/475
https://perjournal.co.za/article/view/615/3130
Copyright (c) 2015 I Du Plessis
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/616
2019-04-12T06:07:29Z
per:ART
driver
Deliberating the Rule of Law and Constitutional Supremacy from the Perspective of the Factual Dimension of Law
Malan, K
Supremacy
faith strengthening language of the doctrine
factual dimension / requisite (of law)
justice (ideal) dimension / requisite (of law)
substituting law
lapsed law
legal lacunae
substituted law
Positive law is two-dimensional: it has a justice (or ideal) dimension (and requisite) and a factual (or real) dimension (and requisite). Both are essential. Hence positive law lapses when either of the two is absent. In terms of the factual requisite, law remains in place as actual norms of law (unlike mere norm-formulations), provided that a minimum degree of effectiveness is maintained; that is to say, only as long as the subjects of the law consistently and voluntarily act in accordance with such norm/s, and provided further that deviant conduct is remedied by effective coercive measures. "Norm/s" that lose the factual dimension lapse into mere norm-formulations and no longer qualify as positive law. Thus viewed, a realistic grasp of the content of law is co-dependent on actual conduct, regardless of what the norm-formulations purport positive law to entail, because the norm-formulations may have lost track of the actual state of the law. Grasping the actual content of law, including constitutional law, therefore requires not only analysing the norm-formulations of the formally recognised sources of the law, but more specifically social and political observation which may reveal the following: (1) actual behaviour that closely corresponds with a legal norm-formulation, in which case the formulations reliably happen to reflect (and by implication to describe) the actual state of law; or (2) conduct that regularly deviates from the norm-formulations (usus) by the deviators who deem themselves legally bound to act as they are acting (opinio iuris), in which case new (substituting) law has in fact come into being, without such substituting law being reflected in a new (amended) norm-formulation; or (3) large-scale but inconsistent and irregular deviant conduct where the deviators do not consider themselves legally bound to act in the various deviant ways, combined with haphazard enforcement, thus allowing deviators to get away with their transgressions. Unlike the first scenario, the purported norm (law) as reflected in the norm-formulations is in part unsettled but unlike as in the second scenario, no new norm (law) has come into being. A legal lacuna opens up - that is, an area not regulated by existing legal norms. Viewed from the perspective of the factual dimension, law, including constitutional law, is much more susceptible to the volatility of unpredictable changes and instability than what the doctrine of the rule of law and constitutional supremacy purport it to be. The doctrine holds law (and the constitution) to be formulation driven, and therefore formal-static in nature, in that the law remains essentially static until the norm-formulations (the text) are amended in terms of the prescribed amendment procedures prescribed by the constitution. Consequently, the prevalent doctrine of the rule of law and constitutional supremacy fail to account for the factual dimension which causes it (the doctrine) to obscure the inner workings of the factual dimension of law, and therefore acts as a hindrance to understanding the nature and content of (positive) law, including the constitution.
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/616
10.4314/pelj.v18i4.14
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 1205-1250
1727-3781
eng
https://perjournal.co.za/article/view/616/476
https://perjournal.co.za/article/view/616/3131
https://perjournal.co.za/article/view/616/8534
Copyright (c) 2015 K Malan
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/617
2019-02-28T08:52:31Z
per:BR
driver
International Law and Child Soldiers by Gus Waschefort
Robinson, JA
Long gone are the days that the law pertaining to children essentially dealt with the position of children within the parent-child relationship. On the contrary it has become a highly specialised legal discipline in which international and regional conventions progressively establish norms and standards to be adhered to. This book by Waschefort, the 53rd volume in the series Studies in International Law, bears ample testimony to this. It reviews all of the international instruments containing proscriptive norms to prohibit the use and recruitment of child soldiers. It commences with an analysis of the current state of child soldiering internationally, after which relevant international instruments are comprehensively discussed with a clear focus on the question of whether or not the prohibitive norms are optimally enforced – are they capable of better enforcement?
Faculty of Law, North-West University, South Africa
2015-06-12
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Non-Peer Reviewed Book Review
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/617
10.4314/pelj.v18i4.15
Potchefstroom Electronic Law Journal; Vol. 18 No. 4 (2015); 1251-1254
1727-3781
eng
https://perjournal.co.za/article/view/617/478
https://perjournal.co.za/article/view/617/3132
https://perjournal.co.za/article/view/617/8535
Copyright (c) 2015 JA Robinson
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/618
2019-02-28T08:50:58Z
per:ED
driver
Editorial
Rautenbach, Christa
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
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Editorial
application/pdf
https://perjournal.co.za/article/view/618
10.17159/1727-3781/2014/v17i6a618
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 0-0
1727-3781
eng
https://perjournal.co.za/article/view/618/479
Copyright (c) 2014 Christa Rautenbach
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/619
2019-02-28T08:50:58Z
per:ART
driver
Proportionality and the limitation clauses of the South African Bill of Rights
Rautenbach, IM
Limitation of rights
bills of rights
proportionality
elements of proportionality
history of proportionality in the South African Constitution
balancing
weight-formula
"Proportionality" is a contemporary heavy-weight concept which has been described as an element of a globalised international grammar and as a foundational element of global constitutionalism. The article firstly describes the elements of proportionality as they are generally understood in foreign systems, namely whether the limitation pursues a legitimate aim, whether the limitation is capable of achieving this aim, whether the act impairs the right as little as possible and the so-called balancing stage when it must be determined whether the achievement of the aim outweighs the limitation imposed. The German academic Alexy (Theorie der Grundrechte (1986)) developed what he called a mathematical weight formula to deal with the balancing stage. An overview is provided of how the elements of proportionality were dealt with in the text of the South African interim Constitution of 1994, the early jurisprudence of the Constitutional Court, and in the text of the final Constitution of 1996. Contemporary South African academic criticism of the use of the concept is also analysed. The article then endeavours to relate the elements of Alexy’s weight formula to both the elements of the South African general limitation clause in section 36 of the Constitution and to the appearance of such elements in the formulation of specific rights in the Bill of Rights. Although the levels of abstraction reached in the debates on the Alexy formula are so daunting that it is most unlikely that South African courts and practitioners will ever use it, certain valuable insights can be gained from it for the purposes of dealing with proportionality within the context of the limitation of rights in South Africa. Despite opposition from certain academics, proportionality is a prominent feature of the application of the limitation clauses in the South African Constitution. The elements of proportionality provides a useful tool for the application, within the context of the limitation of rights, of general and wide concepts such as "fairness", "reasonableness", "rationality", "public interest" and, somewhat surprisingly, also of the general concept "proportionality" as such. South Africa’s participation in the global recognition and application of this way of dealing with the limitation of rights is worthwhile.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/619
10.4314/pelj.v17i6.01
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2229-2267
1727-3781
eng
https://perjournal.co.za/article/view/619/480
https://perjournal.co.za/article/view/619/3270
https://perjournal.co.za/article/view/619/8975
Copyright (c) 2014 IM Rautenbach
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/620
2019-02-28T08:50:58Z
per:ART
driver
The Regulation of electronic money institutions in the SADC region: Some lessons from the EU
Tuba, MD
Bank Directives
electronic money
European Union
hardware-based e-money
initial capital
payment systems
prudential requirements
SADC
software-based e-money
technology-neutral
This article analyses the different approaches adopted for the regulation of payment systems in a variety of legislative instruments by the European Union (EU). It looks in particular at how the institutions that issue new electronic money products are regulated and supervised by the relevant authorities in the EU, in comparison with existing institutions such as banks. It analyses some of the lessons that may be learned by the South African Development Corporation (SADC) from the regulatory approaches for electronic money institutions adopted by the EU. The article asks if the approach adopted by the EU may be useful for the future regulation of electronic money institutions in the SADC. The proliferation of electronic devices that arrived with the invention of the Internet has sparked some regulatory challenges. This development has become global and involves both developed and developing countries, including regions such as the SADC. It is asked if these technological developments should be addressed by means of a concrete regulatory framework while they continue to develop, instead of the regulators waiting to observe and acquaint themselves with the relevant regulatory challenges that underpin the innovations. The EU has attempted to address the anticipated regulatory challenges that came about with the development of electronic money and to align its regulatory approach with other payment systems. This article discusses the regulatory approaches adopted in the EU and provides an overview that the SADC may use in order to adopt an effective regulatory framework for electronic money and the institutions that issue these methods of payment. It analyses both the achievements and the challenges that the EU faced (and continues to face) in developing the regulation of e-money, and recommends some possible approaches derived from the lessons learned.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/620
10.4314/pelj.v17i6.02
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2269-2312
1727-3781
eng
https://perjournal.co.za/article/view/620/481
https://perjournal.co.za/article/view/620/3271
https://perjournal.co.za/article/view/620/8976
Copyright (c) 2014 MD Tuba
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/621
2019-02-28T08:50:58Z
per:ART
driver
Disqualification for non-compliance with public tender conditions
Bolton, P
Acquisition
disqualification
exclusion
goods and services
government
procurement
public specifications
tenders
When government entities procure goods or services, they generally consider and award contracts only to bidders who complied with the specifications and conditions of tender as laid down in the tender invitation. Tenders received must in other words be conforming, compliant or responsive. This enables procuring entities to compare tenders on an equal footing and ensures equal treatment amongst bidders. In South Africa the extent to which bidders must comply with tender specifications and conditions is a thorny issue in practice. In 2008 the Supreme Court of Appeal in Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province confirmed the views of the courts in South Africa regarding compliance with tender conditions and the amendment of tenders before award. The recent 2013 decision of the Supreme Court of Appeal in Dr JS Moroka Municipality v The Chairperson of the Tender Evaluation Committee of the Dr JS Moroka Municipality, however, has moved public procurement regulation in South Africa to a point where procuring entities have very limited discretionary powers when evaluating compliance with tender specifications and conditions. This paper argues for an approach that allows procuring entities in South Africa more discretion when evaluating compliance with tender specifications and conditions. In doing so, reliance is placed on the treatment of "responsiveness" in international instruments as well as the views of the South African courts since first they were confronted with the issue.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/621
10.4314/pelj.v17i6.03
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2314-2354
1727-3781
eng
https://perjournal.co.za/article/view/621/482
https://perjournal.co.za/article/view/621/3272
https://perjournal.co.za/article/view/621/8977
Copyright (c) 2014 P Bolton
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/622
2019-02-28T08:50:58Z
per:ART
driver
Arbitration of family separation issues – a useful adjunct to mediation and the court process
De Jong, M
Family law arbitration
Arbitration Act 42 of 1965
party-autonomy
alternative dispute resolution
divorce process
problems with the adversarial system of litigation
agreement to arbitrate
arbitration process
advantages of arbitration
party autonomy
For over half a century now, section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article it will be illustrated that this prohibition is clearly incompatible with present-day demands. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration. As any recommendations that arbitration should be applied to family law disputes must be anchored in an analysis of the specific character of the arbitral remedy, the article begins by giving a broad overview of the nature of arbitration. This is followed by a discussion of the present-day demand for family arbitration, which examines the problems experienced with the adversarial system of litigation in resolving family law disputes, party autonomy, the development of alternative dispute resolution processes such as mediation and arbitration, the special synergy between mediation and arbitration, the success of arbitration in other fields of law and possible forerunners for family arbitration in South Africa. Inherent in the demand for family law arbitration are the many advantages of arbitration, which are also touched upon. Thirdly, current trends in England, Australia, the United States of America, Canada and India are analysed so as to identify a suitable family law arbitration model for South Africa. Special attention is paid to the matters that should be referred to arbitration – for example, should it be confined to matrimonial property and financial disputes or extended to all matters incidental to divorce or family breakdown, including children's issues? Other questions examined include whether family arbitration should comply with substantive law only, who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court's role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters. Lastly, it is concluded that although family arbitration will not have universal appeal or common application, it should be encouraged and enforceable for those who choose this private alternative dispute settlement technique to resolve their family disputes.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/622
10.4314/pelj.v17i6.04
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2356-2410
1727-3781
eng
https://perjournal.co.za/article/view/622/483
https://perjournal.co.za/article/view/622/3273
https://perjournal.co.za/article/view/622/8978
Copyright (c) 2014 M De Jong
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/623
2019-02-28T08:50:58Z
per:ART
driver
Transparency, trust and security: An evaluation of the insurer's precontractual duties
Millard, D
Kuschke, B
Transparency
Insurance Law
Insurer's pre-contractual duties
Financial Advisory and Intermediary Services Act 37 of 2002
Policyholder Protection Rules in terms of the Long-term Insurance Act 52 of 1998 and the Short-term Insurance Act 53 of 1998
Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/623
10.4314/pelj.v17i6.05
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2412-2450
1727-3781
eng
https://perjournal.co.za/article/view/623/484
https://perjournal.co.za/article/view/623/3274
https://perjournal.co.za/article/view/623/8980
Copyright (c) 2014 D Millard, B Kuschke
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/643
2019-02-28T08:50:58Z
per:ART
driver
The liability of churches for the historical sexual assault of children by priests
Calitz, K
Vicarious liability
church
priests
sexual abuse
children
Could a church be held liable for the sexual assault of children by priests when the victims claim as adults only many years after the event? Complainants can claim damages on the basis that the church is either directly or vicariously liable for the alleged acts. If the victims rely on vicarious liability, they will have to prove that the wrongdoer was an employee of the defendant and will further have to prove that the assaults were committed within the course and scope of the wrongdoer's employment. The requirement that a priest must be an employee has in the past created a hurdle for victims, since courts in different countries have traditionally held that priests are not employees of the church as they are servants of God, subject to ecclesiastic law and not civil law. However, in John Doe v Bennet in Canada and JGE v Diocese of Portsmouth in the UK the courts have recently held that even a relationship akin to employment is sufficient to be a basis for vicarious liability. In Bazley v Curry the Canadian Supreme Court moreover extended the traditional meaning of the "course and scope of employment" by developing the "close connection" test. The court found that the acts of a warden of a children's home were so closely connected with his duties that it was fair that his employer (a charitable organisation) should be held liable for his conduct. The close connection test was followed by the House of Lords in the United Kingdom and by the South African Constitutional Court in K v Minister of Safety and Security, although in another context. Adult complainants in cases such as these will further have to prove that their claim has not expired as a result of prescription. In Canada, the UK and South Africa courts have in different ways acknowledged the fact that victims of child sexual abuse are often not able to process their claims timeously, because of psychological factors. The victims are allowed to bring their claims often decades after commission of the wrongful acts. These developments have undoubtedly broadened the vicarious liability of employers and more specifically the liability of churches.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/643
10.4314/pelj.v17i6.06
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2452-2486
1727-3781
eng
https://perjournal.co.za/article/view/643/501
https://perjournal.co.za/article/view/643/3276
https://perjournal.co.za/article/view/643/8981
Copyright (c) 2014 K Calitz
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/644
2019-02-28T08:50:58Z
per:ART
driver
A non-member spouse's entitlement to the member's pension interest
Marumoagae, MC
Entitlement
pension interest
non-member spouse
member spouse
clean break principle
divorce
joint estate
It is important that married couples seek legal advice with regard to the assets falling within their joint estate, more particularly their retirement benefits. This article reflects on the entitlement (if any) of non-member spouses to their spouses' retirement fund benefits. Pension benefits can be due before, during or after divorce, and parties to the marriage should be aware of their rights with regard to the accruing pension benefits of their spouses. While it is settled law that non-member spouses are entitled to receive a portion of their member spouses' pension benefits (known as "pension interest") immediately on divorce, it is not particularly clear whether non-member spouses are also entitled to receive the same before or sometime after divorce. In this article I provide a contextual understanding of the entitlements (if any) which spouses or former spouses of members of pension funds have on such member spouses' retirement benefits. Furthermore, it shown in this article that various divisions of South African High Courts have been inconsistent in how they have approached the issue of the pension interest between divorcing spouses or divorced ex-spouses.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/644
10.4314/pelj.v17i6.07
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2488-2524
1727-3781
eng
https://perjournal.co.za/article/view/644/502
https://perjournal.co.za/article/view/644/3278
https://perjournal.co.za/article/view/644/8982
Copyright (c) 2014 MC Marumoagae
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/645
2019-02-28T08:50:58Z
per:ART
driver
The legal nature of a lien in South African law
Wiese, M
Lien (right of retention)
capacity to withhold
real security right
real right
personal right
defence against rei vindicatio
exceptio non adimpleti contractus
The South African law acknowledges two types of liens or rights of retention, namely enrichment liens and contractual liens (also known as debtor and creditor liens). Enrichment liens are regarded as limited real rights which are enforceable against the owner of the thing. Contractual liens are not regarded as limited real rights: sometimes they are referred to as personal rights which are enforceable only inter partes. Thus, a lien is classified as a right (subjektiewe reg) (ie a real right or a personal right). This article reflects on the correctness of this classification of liens. The term "right" can have various meanings and the aim of this article is to determine the exact meaning of the term "right" in the context of "right of retention". In my opinion a lien is not a right. I therefore reject the classification of liens into contractual liens and enrichment liens with its concomitant consequences. A lien is a defence against an owner's rei vindicatio in that it allows a creditor (a lienholder) to retain control of the owner's thing until the debt has been paid. Because the law grants a defence to a creditor in control of a thing, the owner cannot succeed with her rei vindicatio. A distinction should be drawn between an entitlement that flows from a right (it describes the content of the right) and a competency or capacity which emanates directly from the law. A lien is not an entitlement flowing from a lienholder's personal right - based on a contract or an enrichment claim - against the debtor. It is rather a capacity to withhold because the law grants this defence. The term "capacity" is not used in a technical sense but rather in the context of the ability to withhold, which is granted by the law.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/epub+zip
https://perjournal.co.za/article/view/645
10.4314/pelj.v17i6.08
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2526-2553
1727-3781
eng
https://perjournal.co.za/article/view/645/503
https://perjournal.co.za/article/view/645/8983
Copyright (c) 2014 M Wiese
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/646
2019-02-28T08:50:58Z
per:ART
driver
An argument for South Africa's accession to the optional protocol to the international covenant on economic, social and cultural rights in the light of its importance and implications
Viljoen, F
Orago, N
The universality, indivisibility, interdependence and interrelatedness of all rights have been universally acclaimed since the drafting in 1948 of the Universal Declaration of Human Rights. However, despite the doctrine of indivisibility, civil and political rights (CPRs) have for a long time been treated as being enforceable judicially at the national, regional and international levels, while socio-economic rights (SERs) have not. With the elaboration and adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), which mandates the Committee on Economic, Social and Cultural Rights (CESCR) to consider individual communications detailing the violations of SERs, the justiciability of SERs was also fully recognised at the international level.This paper undertakes an analysis of the importance and implications of the individual communications procedure under the OP-ICESCR and details some of the reasons why it would be beneficial for South Africa to accede thereto. The argument for accession by South Africa to the OP-ICESCR departs from the premise that South Africa's ratification of the ICESCR is imminent. Having signed the ICESCR on 3 October 1994, the South African Cabinet on 10 October 2012 decided that South Africa should ratify the Covenant. The authors argue that acceding to the OP-ICESCR will complement domestic protection and will confirm South Africa's global leadership in the field of justiciable SERs. Logic dictates that South Africa should confirm at the international level its position as a world leader on the national justiciability and legal enforcement of SERs, as indeed it has done during the drafting process of the OP-ICESCR. Accession to OP-ICESCR, the argument continues, will not detract from the country's sovereignty, especially in the light of the requirement of the exhaustion of domestic remedies, including the condition that applicants must show that they have suffered a "clear disadvantage". In any event, South Africa already has undertaken obligations as to SERs under regional human rights treaties that are equal to and in some respect more arduous than the obligations emanating from the ICESCR.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/646
10.4314/pelj.v17i6.09
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2555-2599
1727-3781
eng
https://perjournal.co.za/article/view/646/504
https://perjournal.co.za/article/view/646/3279
https://perjournal.co.za/article/view/646/8984
Copyright (c) 2014 F Viljoen, N Orago
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/647
2019-02-28T08:50:58Z
per:ART
driver
The Interplay between international law and labour law in South Africa: Piercing the diplomatic immunity veil
Gericke, SB
Constitutional rights
diplomat
diplomatic immunity
employee
employer
extraterritoriality
foreign embassy
international law
interplay
inviolability
labour law
principle of extraterritoriality
receiving state
representing state
sending state
This article investigates the interplay between labour law and international law in the context of the diplomatic employment relationship. The overriding effect of the Constitution of the Republic of South Africa, 1996 as supreme law to protect the labour rights of employees is weighed against the effect of various binding international legal instruments aimed at protecting diplomats' right to immunity. In view of the competing rights of employees and diplomatic employers, the question in this regard is to what extent employees in a diplomatic employment relationship can rely on their right to "fair labour practices" in the broad sense and the overall protection afforded to employees whose rights are infringed. In view of the perception that diplomatic employers can hide behind a veil of diplomatic immunity and in the absence of judgments by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court, answers and guidelines were sought from various international courts and legal instruments. However, it is pointed out that the application of labour law and international law to protect the interests of individuals against a state is an exceptionally sensitive and controversial issue. It is suggested that the international relationship between two states be used as a holistic framework, but it is cautioned that international law limits the diplomat employer's liability both in terms of the Bill of Rights and South African labour laws. The author shows that protection is afforded to diplomats/consular agents by international law. Moreover, the Diplomatic Immunities and Privileges Act (DIPA) of 2001 is discussed. It is submitted that employees are not prevented from taking legal action against a diplomat/consular employer in South Africa in terms of the Labour Relations Act (LRA) or the DIPA. The author suggests that diplomatic employees and employers should be made aware of their rights and obligations in this regard. In essence what really matters to any labour lawyer is how it can be justified that a group of vulnerable employees (diplomatic employees) is left without a remedy while the employer as the stronger bargaining party is protected in terms of international law. The author submits that employees should have access to compulsory private arbitration in terms of an amendment to the DIPA or in terms of a treaty. This must bind a diplomat/consular employer from South Africa (as the sending state) in a foreign state, and a foreign diplomat/consular employer in South Africa (as the receiving state) to protect employees. It is suggested that such a provision should be included in diplomatic contracts of employment after ratification of a treaty, even before it is enacted into relevant laws in South Africa. In view of the sensitivity and international consequences of labour disputes for states, it is suggested that private arbitration could serve as a useful dispute resolution procedure and an acceptable alternative to the general options available in terms of the CCMA, the labour court and the high court. It is suggested that the full protection of diplomatic employees' labour rights cannot be based on the status of their employers. Finally the author argues that lifting the veil of diplomatic immunity could provide a satisfactory interplay between labour law and international law to support the interests and rights of both parties to the diplomatic employment relationship.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/647
10.4314/pelj.v17i6.10
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2601-2634
1727-3781
eng
https://perjournal.co.za/article/view/647/505
https://perjournal.co.za/article/view/647/3280
https://perjournal.co.za/article/view/647/8985
Copyright (c) 2014 SB Gericke
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/648
2019-02-28T08:50:58Z
per:ART
driver
The legal implications of the economic realities of artificially manipulating a decrease/increase of earnings per share - if any
Kilian, CG
Snyman-Van Deventer, E
Earnings per share
earnings-per-share ratio
Companies Act
economic reality
financial engineering
share capital structure
Although probably oversimplified, calculating "earnings per share" or the "earnings-per-share ratio" entails the activity of dividing the net profit of a company by the number of its issued shares. The economic reality is that companies may use innovation and creativity to lawfully engineer a better earnings-per-share ratio in order to attract more shareholder investments. Neither the Companies Act of 1973 nor that of 2008 makes any provision for the maximum or minimum amount of capital required to float a company, or the minimum number of shares that should be issued. This depends solely on the promoters' discretion of the number of shares that must equal the capital amount. It is therefore possible that the promoters may excessively exercise their discretion when deciding on the authorised share capital, and later tailor-make or financially engineer the share capital structure of the business to make it attractive to shareholders or future shareholders. After all, the law does not prohibit statutory financial engineering. The purpose of this article is therefore to 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. Possible methods of preventing or limiting artificial increases in earnings per share are also suggested.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/648
10.4314/pelj.v17i6.11
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2636-2665
1727-3781
eng
https://perjournal.co.za/article/view/648/506
https://perjournal.co.za/article/view/648/3281
https://perjournal.co.za/article/view/648/8986
Copyright (c) 2014 CG Kilian, E Snyman-Van Deventer
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/650
2019-02-28T08:50:58Z
per:ART
driver
The legislative framework regarding bullying in South African schools
Laas, A
Boezaart, T
Bullying in schools is a global phenomenon that has the potential to impact on children not only physically but also psychologically. In South Africa countless children fall victim to bullying, harassment and abuse at schools. A myriad of constitutional rights are infringed upon when bullying occurs, and the problem is escalating. The Protection from Harassment Act 71 of 2011 was signed and accepted into law on the 27th of April 2013. This new Act may grant relief to victims of bullying inter alia by providing for protection orders, and therefore adds to the legislative framework available to victims. However, in terms of bullying in schools, the parties to these incidents are minors and therefore a critical analysis is necessary with regard to the rights of the victim and the offender. In this context the relationship and interaction between the Protection from Harassment Act 71 of 2011, the Child Justice Act 75 of 2008, the Children's Act 38 of 2005 and the South African Schools Act 84 of 1996 call for critical analysis.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/650
10.4314/pelj.v17i6.12
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2667-2702
1727-3781
eng
https://perjournal.co.za/article/view/650/508
https://perjournal.co.za/article/view/650/3282
https://perjournal.co.za/article/view/650/8987
Copyright (c) 2014 A Laas, T Boezaart
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/652
2019-02-28T08:50:58Z
per:ART
driver
Separation of powers in Ghana: The evolution of the political question doctrine
Mhango, M
In some democracies judiciaries have developed the political question doctrine to jurisprudentially resolve political questions and define their relationship with other branches of government. This doctrine is a function of the principle of the separation of powers and provides that there are certain questions of constitutional law that are constitutionally committed to the elected branches of government for resolution. As a result, such questions are non-justiciable and require the judiciary to abstain from deciding them if doing so would intrude upon the functions of the elected branches of government. This article examines the evolution and current status of the political question doctrine in Ghanaian jurisprudence, which developed from American jurisprudence. It begins by briefly discussing the history of the doctrine and its modern application in America. It then discusses how this doctrine was imported into Ghana and applied by the Ghanaian judiciary. The article argues that while there are differences of opinion around the application of the political question doctrine within Ghana's judiciary, the doctrine is firmly part of Ghanaian constitutional law. The article observes that the difference of opinion among judges is over the proper application of the doctrine rather than on whether it forms part of Ghanaian constitutional law. The article also discusses a related issue of the constitutional status of Directive Principles of State Policy in chapter 6 of the Constitution of Ghana.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/652
10.4314/pelj.v17i6.13
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2704-2744
1727-3781
eng
https://perjournal.co.za/article/view/652/510
https://perjournal.co.za/article/view/652/3283
https://perjournal.co.za/article/view/652/8989
Copyright (c) 2014 M Mhango
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/660
2019-04-04T13:29:57Z
per:Note
driver
Property in insolvent estates – Edkins V registrar of deeds, Fourie V Edkins, and Motala V Moller
Evans, RG
Steyn, L
Ownership of assets of insolvent estate
solvent spouse
section 21 Insolvency Act 24 of 1936
section 25 Insolvency Act 24 of 1936
The question of the ownership of property which vests (by virtue of sections 20(1) and 21(1) respectively of the Insolvency Act 24 of 1936) in the Master and, upon appointment, in the trustee of the insolvent estate, has been the source of academic debate and conflicting court judgments over a lengthy period. It was thought that the question had been finally settled by the (then) Appellate Division in De Villiers v Delta Cables (Pty) Ltd 1992 1 SA 9 (A), which concerned property belonging to the solvent spouse (as defined in section 21(13)), where it was held that ownership passes to the Master and subsequently the trustee. This was accepted by the Constitutional Court for the purposes of its judgment in Harksen v Lane 1998 1 SA 300 (CC). However, recent judgments, in Edkins v Registrar of Deeds, Johannesburg 2012 6 SA 278 (GSJ) and, on appeal, Fourie v Edkins 2013 6 SA 576 (SCA), have seemingly again opened up the question for debate, particularly in view of the fact that the Supreme Court of Appeal in Fourie v Edkins ignored its own precedent on this issue. These two judgments concerned property registered in the name of the insolvent. In a third recent judgment, in Motala v Moller (GSJ) unreported case number 32654/11 (GSJ) of 11 September 2013 (copy on file with authors) concerning property which had belonged to the solvent spouse at the time of the sequestration of the estate of her husband, the court regarded section 25(4) of the Insolvency Act as countering the precedent established by De Villiers v Delta Cables. In this article, each of these three judgments is analysed and criticised.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/660
10.4314/pelj.v17i6.14
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2746-2777
1727-3781
eng
https://perjournal.co.za/article/view/660/518
https://perjournal.co.za/article/view/660/3286
https://perjournal.co.za/article/view/660/8999
Copyright (c) 2014 RG Evans, L Steyn
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/661
2019-04-04T13:32:43Z
per:Note
driver
Protecting the vulnerable? Assessing the constitutionality of the national register for sex offenders in respect of juvenile sex offenders – S v IJ 2013 2 SACR 599 (WCC) and J v National director of public prosecutions 2014 ZACC 13
Stevens, P
Sexual offences register
sexual offences
This contribution deals with the 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. The constitutionality of having juvenile sex offenders' names entered into the National Register of Sex Offenders is scrutinised by the High Court as well as ultimately by the Constitutional Court. A critical analysis specifically of section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act is embarked upon with specific reference to the lack of discretion afforded to courts in deciding whether the particular offender's details should be entered or not. The judgment delivered by the Constitutional Court is elucidated, where these provisions were declared unconstitutional in respect of child sex offenders. The decision under discussion is of particular relevance as the court was required to assess the constitutionality of the provisions relating to the Register with specific reference to juvenile sex offenders. The Constitutional Court specifically emphasised the need for an individuated discretion in respect of juvenile sex offenders catering specifically for the needs of juvenile sex offenders. The difference between adult sex offenders and juvenile sex offenders is also emphasised. The approaches followed by both the High Court and the Constitutional Court are provided and discussed, conclusions are reached and recommendations are made. It is suggested that in respect of juvenile sex offenders, a more holistic approach should be adopted with due regard to the Constitution, the objects of the CJA, and the specific circumstances of the offence. Children should be treated in such a way as to promote their dignity as well as their reintegration into society, having regard to the specific circumstances of the offence. In terms of the latter, children should be placed on the Register only if they pose a demonstrable risk and danger to the community.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/661
10.4314/pelj.v17i6.15
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2779-2803
1727-3781
eng
https://perjournal.co.za/article/view/661/519
https://perjournal.co.za/article/view/661/3288
https://perjournal.co.za/article/view/661/9012
Copyright (c) 2014 P Stevens
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/662
2019-02-28T08:50:58Z
per:Note
driver
Fiddling with the ECT act – Electronic signatures
Eiselen, S
Amongst the changes the Department of Trade and Industry is considering is an amendment of the definition of "electronic signature". Although the amendment seems to be in line with the provisions of the UNCITRAL Model Laws on eCommerce and the 2005 UN Convention on the Use of Electronic Communications in International Contracts, the amendment sets additional and more onerous requirements for all electronic signatures. The note illustrates how this amendment undermines the key principles of functional equivalence, media neutrality and party autonomy, and how this innocuous looking amendment may have very harmful practical consequences. It is suggested that amendments to section 13 would be more appropriate to achieve the objectives of the legislature.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/662
10.4314/pelj.v17i6.16
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2805-2820
1727-3781
eng
https://perjournal.co.za/article/view/662/521
https://perjournal.co.za/article/view/662/3290
https://perjournal.co.za/article/view/662/9013
Copyright (c) 2014 S Eiselen
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/663
2019-02-28T08:50:58Z
per:Note
driver
Frontiers of change and governance in contractual agreements: The possible role of exploitation - Uniting Reformed Church De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC)
Hawthorne, L
Constitution
contract law
public policy
inequality of bargaining power
exploitation
In the South African common law of contract there appears to be support for the open norm of public policy as a general clause to ameliorate the effects of unfair contracts and terms which are contrary to public policy. The courts have on several occasions held that contracts or terms would be regarded as contrary to public policy had they come about where the parties were in an unequal bargaining relationship and this inequality was linked with another factor(s). In this case note it is argued that the element of unequal bargaining position may be contrary to public policy if it is linked with exploitation as the other factor. The element of exploitation was highlighted in the recent court decision of Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). In this case the applicant church owned three properties on which were three schools under the control of the State. The church and the State had concluded 20-year notarial leases in respect of each of the properties. A term in the contract provided that after the expiration of the lease period the church would transfer the properties to the State free of charge. After the expiration of the leases the State demanded the transfer of the properties. The church disputed the claim, averring that the term was unenforceable because the parties had been in an unequal bargaining position and that the enforcement of the term constituted expropriation in contravention of the property clause of the Constitution. It is submitted that expropriation without compensation is not only contrary to section 25 of the Constitution but constitutes exploitation. It is suggested that where exploitation results from an unequal bargaining relationship it provides the "further factor" that, together with the inequality in bargaining power, is sufficient to establish that the term or contract is in conflict with public policy. This contributes to giving meaning to the term "public policy". To support this argument, reference is made to the German Civil Code, the Swiss Civil Code, consumer protection legislation and the philosophy of Wertheimer.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/663
10.4314/pelj.v17i6.17
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2822-2843
1727-3781
eng
https://perjournal.co.za/article/view/663/522
https://perjournal.co.za/article/view/663/3291
https://perjournal.co.za/article/view/663/9014
Copyright (c) 2014 L Hawthorne
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/664
2019-02-28T08:50:58Z
per:Note
driver
Defamation on facebook: Isparta V Richter 2013 6 SA 529 (GP)
Roos, A
Slabbert, M
Applicable law
apology
boni mores
defamation
ECT Act
electronic media
Facebook
fair comment
freedom of expression
freedom of speech
grounds of justification
harmful content
intent
internet
internet service provider liability
interdict
Litigation involving social media is still very new in South Africa and only a few reported cases can be found. In this case discussion, a brief overview is given of the few cases already reported, but in the main the case of Isparta v Richter 2013 6 SA 4529 (GP) is discussed. In this case a South African court for the first time awarded damages to the plaintiff for defamatory comments made on Facebook. The questions that confronted the judge were whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. The issue whether the "tagging" of another user of Facebook makes that user liable for the defamatory comments of the tagger is also addressed in the case. The case discussion concludes with a reference to other issues that could play a role in litigation involving Facebook, namely the Electronic Communications and Transactions Act 25 of 2002 and foreign law.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/664
10.4314/pelj.v17i6.18
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2845-2868
1727-3781
eng
https://perjournal.co.za/article/view/664/523
https://perjournal.co.za/article/view/664/3292
https://perjournal.co.za/article/view/664/9015
Copyright (c) 2014 A Roos, M Slabbert
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/665
2019-02-28T08:50:58Z
per:Note
driver
Reasonable accommodation in the workplace: To be or not to be?
Bernard, RB
Freedom of religion is a fundamental right enshrined in and protected by section 15 of the Constitution. This right allows for the practice of religion without interference from the state and individuals. A question which often arises relates to the extent to which freedom of religion can be exercised in the workplace.Religious practice often extends beyond societal norms, but religious intolerance has proven to be a source of conflict. In the workplace this conflict arises "where the employer's right to the employee's labour and service conflicts with the employee's inability or refusal to render services because of a religious or cultural belief".1 The courts have played an important role in balancing the rights of the employer to manage his business operations efficiently with the rights of the employee to practice his religious or cultural beliefs. The critical question is how the employer is expected to balance and maintain an orderly, disciplined and efficient workplace whilst accommodating an employee's right to religious freedom.The case of Department of Correctional Services v Police and Prison Civil Rights Union (POPCRU) 2011 32 ILJ 2629 (LAC) is one where the employer's application of rules relating to the dress code of employees impacted on the religious beliefs and practices of five staff. In this note, this decision and the decisions in other recent cases are analysed in order to determine how the courts have dealt with the issue of the reasonable accommodation of religious practices in the workplace.The employer in the POPCRU case2 was justified in wanting to improve the discipline and standards within the prison. The findings of the LAC and SCA were indeed correct: while the dress code appeared to be neutral, the actual impact resulted in the disparate treatment of the employees. They were discriminated against as a result of wearing dreadlocks. The employer failed to reasonably accommodate the religious beliefs of the employees, and had it done so dismissal would not have occurred.The employees illustrated that the wearing of dreadlocks was a sincerely held belief, which was a central tenet of their religion. The employer was made aware of this fact, and despite this, they were dismissed. The employer was unable to illustrate that the rule against the wearing of dreadlocks was fair, and neither could the employer illustrate that this rule was an inherent requirement of the job.It is important to note the trend that has emerged:a. For an employee to succeed in a claim for unfair dismissal on the basis of religious discrimination, the employee will have to establish that the belief is sincerely held. Thus, according to Pillay,3 employers are required to implement positive measures to reasonably accommodate the religious practices of an employee.b. The employer will have to establish that the religious discrimination is fair or that the rule or practice prohibiting the employee's freedom of religion is in terms of an inherent requirement of the job. In order to justify the dismissal of an employee, the employer has to show that the policy or rule was an inherent requirement of the job.c. Society has evolved. Employers therefore need to reasonably accommodate the sincerely held religious beliefs of employees."When entering the workplace, employees do not leave behind their personalities, their likes and dislikes, their convictions or their faiths and beliefs, morals, sentiments and, of course, religious beliefs."4 A concerted effort is therefore required of employers to accommodate diversity and promote religious freedom in the workplace.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/epub+zip
https://perjournal.co.za/article/view/665
10.4314/pelj.v17i6.19
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2870-2891
1727-3781
eng
https://perjournal.co.za/article/view/665/524
https://perjournal.co.za/article/view/665/9016
Copyright (c) 2014 RB Bernard
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/666
2021-08-10T10:33:51Z
per:Note
driver
Afriforum v Malema: The limits of law and complexity
Buitendag, N
Van Marle, K
Afriforum
Julius Malema
Niklas Luhmann
Paul Ricoeur
Paul Cilliers
autopoiesis
narrative time
slowness
complexity
legal communication
identity
The Afriforum v Malema 2011 6 SA 240 (EqC) case drew considerable attention in the media and in the public discourse. The purpose of this note is to reflect upon the judgment from a theoretical vantage point. More specifically, by reading the judgment through an autopoietic systems theory lens, some points of criticism on the judgment in particular and the law in general become apparent. It is contended that the judgment illustrates how law necessarily excludes the factual complexity of a case, first by deciding which are the only facts legally relevant, and then second by reducing their meaning to a simple judgment of legal or illegal. Since law recognises only legal communication, this function means that the communication and identity are removed from legal subjects and given legal meanings. An attempt is made to open law to considerations external to what it traditionally considers to be relevant to its operation. The problem that law excludes facts it deems irrelevant is addressed through the introduction of a third value whereby to measure the legal and illegal, namely justice. Through asking if its judgments of legal or illegal are just, law becomes capable of reflexive self-observation. In this manner the very complex historical and narrative trappings of the case at hand do not need to be excluded as they are in the judgment. Rather than absolute, binary judgments, a slower, reflective engagement that makes modest claims is supported.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/666
10.4314/pelj.v17i6.20
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2893-2914
1727-3781
eng
https://perjournal.co.za/article/view/666/525
https://perjournal.co.za/article/view/666/3293
https://perjournal.co.za/article/view/666/9017
Copyright (c) 2014 N Buitendag, K Van Marle
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/667
2019-02-28T08:50:58Z
per:Note
driver
A critical analysis of the majority judgment in F v Minister of Safety and Security 2012 1 SA 536 (cc)
Linscott, JA
Delict
vicarious liability
course and scope rule
deviation cases
"sufficiently close connection" test
fundamental rights
state liability
development of common law in terms of Constitution of the Republic of South Africa
1996
Constitutional Court
The majority judgment of Mogoeng CJ in F v Minister of Safety and Security 2012 1 SA 536 (CC) purports to be a straightforward application of the reasoning of the Constitutional Court in K v Minister of Safety and Security 2005 6 SA 419 (CC), in which the court updated and constitutionalised the "standard test" for vicarious liability in deviation cases originally set out in Minister of Police v Rabie 1986 1 SA 117 (A) by holding that constitutional and other policy norms now play an important role in deciding questions of vicarious liability. However, it is respectfully submitted that a close reading of the majority judgment in F reveals that the judge misconstrues several key concepts related to the doctrine of vicarious liability. In particular, the judge seems to suggest that there are separate and different tests for vicarious liability in instances where an employee has plainly committed a delict in the course and scope of his employment, and where he has to some extent deviated from his employment duties. In fact, there is a single overarching test for vicarious liability - the course and scope rule - but various subsidiary tests are used by the courts to address difficult or borderline cases. It is also questionable whether F truly is a "typical deviation case", as the judge asserts. The judge then applies the constitutionalised test for vicarious liability originally set out in K in a manner which is subtly, but significantly, different from how it was deployed in that case. In particular, Mogoeng CJ's implication that it is not necessary for a court to consider the second leg of the Rabie test in circumstances where the employee wrongdoer has clearly subjectively intended to further the interests of his employer is undesirable and should not be supported. Furthermore, the judge identifies the question of whether or not there is an "intimate link" between the conduct of the employee wrongdoer and the business of his employer as one of the normative issues to be canvassed in order to determine the outcome of the second leg of the Rabie test. In fact, the "intimate link" question is the overall one to be decided in terms of the second leg of the Rabie test, which, in terms of the approach set out by O'Regan J inK, is to be answered by considering a range of factual and normative considerations in conjunction with one another. Moreover, the judge appears to construe the "intimate link" question in primarily factual terms. The discrepancies between the approaches of the courts in K and F are significant because they lead Mogoeng CJ to place a far heavier reliance on factual considerations in deciding whether the conduct of the employee wrongdoer was sufficiently closely related to the employer's business than would have been the case if he had more faithfully applied the test for vicarious liability set out in K. Although the judge devotes a considerable portion of the judgment to the normative issues which point to the need for the court to make a finding of vicarious liability, these do not seem to have been the immediate driver of his ultimate decision to impose vicarious liability in this instance. The reasoning of the majority in F becomes all the more problematic when one considers that the factual considerations linking the employee wrongdoer's conduct to the business of the SAPS are far more tenuous in this case than in K. A more compelling justification for imposing vicarious liability in F would have lain in the normative constitutional considerations that point towards the need to impose vicarious liability in this instance.
Faculty of Law, North-West University, South Africa
2014-11-14
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/667
10.4314/pelj.v17i6.21
Potchefstroom Electronic Law Journal; Vol. 17 No. 6 (2014); 2916-2949
1727-3781
eng
https://perjournal.co.za/article/view/667/526
https://perjournal.co.za/article/view/667/3294
https://perjournal.co.za/article/view/667/9018
Copyright (c) 2014 JA Linscott
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/682
2021-10-22T12:15:25Z
per:ART
driver
The Law Faculty of the NWU Potchefstroom Campus celebrates its half Centenary
Gouws, HS
North-West University
faculty of law
history
The Law Faculty of the North-West University, Potchefstroom Campus, is celebrating its half centenary in 2015, having been founded in 1965. Law subjects were first introduced in 1932 after the Senate had decided on 11 November 1931 to accept the recommendations of a commission which had to examine the possibilities of adding law subjects for the BA degree. The newly found Law Faculty held its first meeting on 4 August 1965.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/682
10.4314/pelj.v18i5.01
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1255–1300
1727-3781
eng
https://perjournal.co.za/article/view/682/539
https://perjournal.co.za/article/view/682/3137
https://perjournal.co.za/article/view/682/8544
Copyright (c) 2015 HS Gouws
http://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/683
2021-09-20T13:11:06Z
per:ART
driver
The Development of International Law through the Unauthorised Conduct of International Institutions
Van der Vyver, JD
International law
development of
international criminal tribunals
creation of
humanitarian intervention
by NATO armed forces
ISIS
terrorism
military intervention against
unwillingness or inability of governments to restrain
The law, including international law, is subject to continuous change. It can be adapted to changing circumstances through formal amendments of or additions to existing norms and practices. It can also be changed through the conduct of international institutions that is not within their legally defined competencies, provided - it will be argued - that the unauthorised conduct (a) is not expressly forbidden by existing rules of international law, and (b) is accepted or condoned by a cross-section of the international community of states. The creation by the Security Council of the United Nations of ad hoc international criminal tribunals, for example, cannot even with a stretch of the imagination be justified on the basis of the powers of the Council stipulated in the UN Charter. However, their creation was applauded by the nations of the world as a feasible and practical way of responding to the atrocities of the early 1990's in the former Yugoslavia and Rwanda. The creation of international criminal tribunals by the Security Council has thus come to be accepted as a new rule of international law. The same reasoning is applied to the newly acquired competence of NATO forces to intervene militarily on humanitarian grounds as exemplified by the NATO bombing campaign of 1999 in Serbia, while not one of the NATO countries was being attacked or under threat of an attack, and the competence of States to attack terrorist groups in a foreign country if the government of that country is either unwilling or unable to prevent the ongoing acts of terror violence.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/683
10.4314/pelj.v18i5.02
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1301–1330
1727-3781
eng
https://perjournal.co.za/article/view/683/540
https://perjournal.co.za/article/view/683/3138
https://perjournal.co.za/article/view/683/8545
Copyright (c) 2015 JD Van der Vyver
http://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/684
2019-04-15T07:59:52Z
per:ART
driver
Theoretical (Dis-) position and Strategic Leitmotivs in Constitutional Interpretation in South Africa
Du Plessis, L
Constitution
Constitution – interpretation of
Constitutional Court – interpretive strategies
leitmotiv – Constitution – interpretation
memorial constitutionalism
monumental constitutionalism
transformative constitutionalism
This essay takes a look at the historic restoration that bequeathed this country and its people a prototypical, justiciable Constitution. The advent of constitutional democracy in South Africa went hand in hand with an about-turn in the interpretation of enacted law-texts (including the Constitution) and a critical interrogation of certain dominant beliefs about the interpretation of law in general and enacted law in particular. Hitherto mostly unnamed or unlabelled (but not entirely alien) interpretive strategies pursued and developed by users of the Constitution are discussed, concentrating mainly on the jurisprudence of the Constitutional Court. Central to the author's approach is an acknowledgement of the decisive actuality of an interpreter's theoretical position becoming visible through (interpretive) leitmotivs. These recur as keynote or defining ideas, motifs or topoi lending direction to specific instances of construing law. Four leitmotivs pertinent to certain constellations of events in constitutional interpretation are discussed and their applicability and utility assessed, drawing on examples from constitutional case-law. The leitmotivs are: (i) transitional constitutionalism; (ii) transformative constitutionalism; (iii) monumental constitutionalism; and (iv) memorial constitutionalism. (i) and (ii) belong together as (A) programmatic leitmotivs and (iii) and (iv) as (B) commemorative leitmotivs. The author concludes that, although scouting out and engaging with leitmotivs call for profound reading and for text analysis of a sort with which "logical" jurists are not always too comfortable, the said endeavours have the potential to be exceptionally rewarding.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/684
10.4314/pelj.v18i5.03
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1331–1365
1727-3781
eng
https://perjournal.co.za/article/view/684/541
https://perjournal.co.za/article/view/684/3143
https://perjournal.co.za/article/view/684/8547
Copyright (c) 2015 L Du Plessis
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/685
2019-02-28T08:52:46Z
per:ART
driver
Die Effek van 'n Voorlopige Sekwestrasiebevel – Word my Reg om 'n Lid van die Parlement te wees ingeperk?
Stander, AL
Iinsolvency
provisional sequestration
final sequestration
effect of sequestration
competency of insolvent
The question asked in this article is inspired by the recent case of Mr Julius Malema. Why the matter is so important and has enjoyed so much attention, is the fact that it was widely suggested that a final order of sequestration would affect Mr Malema's political career in that it would not be possible for him to continue to serve as Member of Parliament. The question that immediately comes to the fore is whether the provisional order of sequestration would not already result in such an outcome. As stipulated by the Constitution of the Republic of South Africa, 1996, an unrehabilitated insolvent may not become a member of the National Assembly, National Council of Provinces, or a Provincial Legislator. Do the words "unrehabilitated insolvent" also include a person who is under provisional sequestration? The purpose of this article is to investigate the effect of a provisional order of sequestration and the focus will be on the ability of an insolvent to act as a Member of Parliament. The legal position in the South African law will be compared with the legal position in the United States of America – which is, with regard to the insolvency law, recognized as a very successful, modern, progressive and dynamic legal system. Voluminous changes to the American bankruptcy law system, to adapt to current practical situations and the current economic climate, have been effected as recently as in 2005. Brief reference will also be made to the legal position in the United Kingdom, due to South Africa's historical ties with the UK and the reliance in the past on the English insolvency law and the Bankruptcy Act, 1986.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/685
10.4314/pelj.v18i5.04
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1366–1404
1727-3781
eng
https://perjournal.co.za/article/view/685/542
https://perjournal.co.za/article/view/685/3144
https://perjournal.co.za/article/view/685/8550
Copyright (c) 2015 AL Stander
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/686
2019-02-28T08:52:46Z
per:ART
driver
Enkele Opmerkings oor Bankrot Munisipaliteite
Stander, AL
Insolvency
insolvent municipalities
sequestration
reorganisation
Chapter 9 reorganisations
The insolvency of municipalities is no longer a rare incident; it is a reality. It is interesting to note that even in the United States of America the insolvency of municipalities is currently an equally serious concern. In South Africa there is much speculation regarding the causes of the insolvency of municipalities, and possible solutions are often discussed. This investigation is an attempt to provide answers. Importantly, however, constructive contributions are needed to begin to address the problem of insolvent municipalities. But to address a problem accurately, necessarily means that one should also refer to the possible causes. The working method applied in the USA with regard to the reorganization of bankrupt municipalities and the requirements set, are explained because it is important to establish what the effect and consequences are of this type of "sequestration" in the American law of insolvency and what the role of the insolvency courts is in managing the whole procedure. In the American law the purpose of the Chapter 9 reorganisation is to provide for a plan acceptable to the majority of creditors and binding on the dissenting minority. Consequently the purpose of this article is to indicate how Chapter 9 functions in practice and which solutions may possibly be applied in South Africa to ensure an effective procedure.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/686
10.4314/pelj.v18i5.05
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1405 -1439
1727-3781
eng
https://perjournal.co.za/article/view/686/543
https://perjournal.co.za/article/view/686/3145
https://perjournal.co.za/article/view/686/8553
Copyright (c) 2015 AL Stander
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/687
2019-04-15T08:29:12Z
per:Note
driver
Regulation of Hydraulic Fracturing in South Africa: A Project Life-Cycle approach? (note)
Du Plessis, W
Hydraulic fracturing regulation in South Africa
2015-regulations
GN R44 of 2015
project life-cycle approach
This note deals with the 2015 regulations pertaining to hydraulic fracturing in South Africa from a project life-cycle approach. A brief history of the fragmentation of the regulation of environmental and mining related matters is provided, followed by a discussion of the application of the 2015 regulations during the project life cycle, ie the pre-commencement phase, the design and authorisation phase, the testing phase, the operational phase and the decommissioning and closure phase.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/xml
application/epub+zip
application/epub+zip
https://perjournal.co.za/article/view/687
10.4314/pelj.v18i5.06
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1440 -1478
1727-3781
eng
https://perjournal.co.za/article/view/687/544
https://perjournal.co.za/article/view/687/3167
https://perjournal.co.za/article/view/687/8546
https://perjournal.co.za/article/view/687/8598
Copyright (c) 2015 W Du Plessis
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/688
2019-02-28T08:52:46Z
per:ART
driver
The Effect of the Original Acquisition of Ownership of Immovable Property on Existing Limited Real Rights
Pienaar, G
Expropriation
hierarchy of rights
limited real rights (nature of)
mortgage bond
original acquisition
ownership (not absolute)
prescription
property
subtraction from the dominium
transfer of rights
vesting of rights
It is an accepted principle in South African law that movable property acquired in an original way (by operation of law) is not burdened by any limited real rights, as previous limited real rights are extinguished on the vesting of ownership (mobilia non habent sequelam). It is assumed by some South African writers that the same principles are applicable to the original acquisition of immovable property and that all existing limited real rights fall away on original acquisition of ownership. In this article the nature of limited real rights to immovable property is examined, and the notion that ownership is the "mother" right on which all limited real rights are based is scrutinised critically. The nature and establishment of limited real rights are used to distinguish between the essence and effect of limited real rights in the case of immovable property. The recognition of limited real rights as constitutional property is used as a further argument that limited real rights cannot be extinguished automatically by the original acquisition of immovable property, as such common law or statutory measures will constitute an arbitrary deprivation of property in terms of section 25 of the Constitution. The statutory provisions regarding limited real rights in the case of prescription and expropriation are then analysed as an indication that it is not a general principle that limited real rights are extinguished automatically on the original acquisition of ownership of immovable property.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/688
10.4314/pelj.v18i5.07
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1479–1505
1727-3781
eng
https://perjournal.co.za/article/view/688/545
https://perjournal.co.za/article/view/688/3146
https://perjournal.co.za/article/view/688/8549
Copyright (c) 2015 G Pienaar
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/690
2019-02-28T08:52:46Z
per:ART
driver
Reasons for Prosecutorial Decisions
Du Toit, PG
Ferreira, GM
National Prosecuting Authority
prosecutorial decisions
reasons for prosecutorial decisions
legality principle
judicial review of prosecutorial decisions
In terms of the prosecuting policy of the National Prosecuting Authority reasons for the exercise of prosecutorial discretions should be furnished on request of persons with a legitimate interest in the decisions. In general only the broad reasons should be provided and not the specific particulars of the decision. This approach is based on two important policy considerations. The first is that the decisions of the prosecuting authority should be transparent since it is a requirement for upholding the legality principle. The second is that the furnishing of specific particulars could result in a violation of the rights of individuals, for example it could create doubt about the innocence of a person without him or her ever having been subjected to a criminal trial. This contribution investigates issues such as the nature of the duty to provide reasons for prosecutorial decisions, the identification of the parties that are entitled to the reasons for a particular prosecutorial decision, and the furnishing of reasons in order to enhance the judicial review of prosecutorial decisions.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/690
10.4314/pelj.v18i5.08
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1506–1526
1727-3781
eng
https://perjournal.co.za/article/view/690/546
https://perjournal.co.za/article/view/690/3147
https://perjournal.co.za/article/view/690/8554
Copyright (c) 2015 PG Du Toit, GM Ferreira
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/691
2019-04-15T08:08:32Z
per:ART
driver
Die Adversatiewe Stelsel van Bewyslewering en die Beste Belang van die Kind in Egskeidingsaangeleenthede: Enkele Gedagtes oor Collaborative Law ter Beslegting Van Ouerlike Geskille
Robinson, JA
Best interest of the child
collaborative law
adversarial system
mediation
In this contribution it is argued that the adversarial system of litigation does not serve the best interests of children upon divorce. After a brief analysis of the system it is concluded that other less aggressive means of litigation should be considered underupon divorce. Collaborative Law is suggested as a means to bear in mind. The fact that current practice of lawyer negotitiatons in respect of divorce is not too far removed from Collaborative Law may lead to practitioners readily accepting the concept.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/691
10.4314/pelj.v18i5.09
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1527–1544
1727-3781
eng
https://perjournal.co.za/article/view/691/547
https://perjournal.co.za/article/view/691/3148
https://perjournal.co.za/article/view/691/8555
Copyright (c) 2015 JA Robinson
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/692
2020-09-03T19:37:14Z
per:ART
driver
The South African Constitutional Court's Use of Foreign Precedent in Matters of Religion: Without Fear or Favour?
Rautenbach, Christa
Transjudicialism
foreign precedent
comparative judicialism
stare decisis
foreign case law
comparative constitutionalism
Constitutional Court
Since its establishment in 1994, the South African Constitutional Court has been quite fearless in its citation of foreign precedents in its reasoning. Compared with that of similar adjudicative institutions elsewhere, the constitutional reasoning of the South African Constitutional Court is still in its infancy, but it has nevertheless earned itself high praise among observers worldwide. The Court has in particular been commended for some ground-breaking and courageous judgments which it handed down without casting either argumentative rigour or judicial self-restraint to the winds. Since its establishment in 1994 the Constitutional Court has cited foreign cases quite extensively. Although these cases deal with all matters of the law, especially human rights issues, the Constitutional Court's use of foreign cases in the area of religion is noteworthy.
Against this background, this contribution remarks on the propensity of the Constitutional Court to look beyond its borders to deals with issues of religion within South Africa. The ultimate question is whether the notion of transjudicialism in the case of religion is detrimental to the reputation of the South African Constitutional Court or whether it is a characteristic of a court which is confident enough that its independence will remain intact in spite of its looking elsewhere for answers.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/692
10.4314/pelj.v18i5.10
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1545–1570
1727-3781
eng
https://perjournal.co.za/article/view/692/548
https://perjournal.co.za/article/view/692/3151
https://perjournal.co.za/article/view/692/8556
Copyright (c) 2015 Christa Rautenbach
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/693
2021-09-20T13:12:14Z
per:ART
driver
Procurement Under the Uncitral Model Law: A Southern Africa Perspective
De la Harpe, SP le R
Public procurement
regionalisation
UNCITRAL Model Law on Public Procurement
infrastructure development
SADC
COMESA
In Africa, economic integration, realised through regional integration, is seen as one of the driving factors that will improve the lives of its people. To enable regionalisation, economic growth and to unlock the potential of Africa its infrastructure will have to be improved. Infrastructure will on the whole be realised through public procurement. The stages for opening up procurement markets, referred to by Yukins and Schooner, is discussed and it is concluded that the states in SADC is still in the initial stages of opening its public procurement markets for regional competition. Although COMESA is not yet in full compliance with all four the stages great strides have been made and have elements of all stages been addressed. Because of the influence the Model Law has already played in COMESA, and the rest of Africa, it would be contra productive should SADC not take the same route as COMESA. If regard is had to the four categories of procurement rules that serves as barriers to national procurement markets, as set out by Arrowsmith it is clear that all of these are present in most SADC member states. Also in the case of COMESA these barriers still exist albeit to a lesser extent. What is necessary is a phased approach to address all of these barriers. This will be possible under the UNCITRAL Model Law as the 2011 Model Law does provide for the possibility of complying with international obligations and for states to allow for socio economic objectives in their procurement regimes. There can be little doubt that the 1994 Model Law has already had a marked influence on public procurement regulation in Africa and that the 2011 Model Law will in future continue to do so. Public procurement is essential for economic development and is the integration and harmonisation thereof on a regional basis the first step In this regard SADC, and especially South Africa, has an important role to play.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/693
10.4314/pelj.v18i5.11
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1571–1601
1727-3781
eng
https://perjournal.co.za/article/view/693/549
https://perjournal.co.za/article/view/693/3152
https://perjournal.co.za/article/view/693/8557
Copyright (c) 2015 S De la Harpe
http://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/694
2019-04-15T08:10:33Z
per:ART
driver
Anti-Money Laundering Regulations and the Effective use of Mobile Money in South Africa – Part 1
Kersop, M
Du Toit, SF
Mobile money
financial inclusion
financial integrity
risk-based approach
Mobile financial services, specifically mobile money, has the potential to expand access to financial services to millions of unbanked people in South Africa. As such, it looks very promising in terms of financial inclusion. However, concerns exist that mobile money can be detrimental to financial integrity since there are several proven risk factors linked to mobile financial services. These risk factors make mobile money very susceptible to money laundering. The potential for abuse and the need for appropriate controls is therefore something which cannot be ignored. While the South African legislator has made provision for comprehensive anti-money laundering preventative measures by means of the Financial Intelligence Centre Act 38 of 2001, there exists no South African legislation explicitly concerned with mobile money. It is therefore difficult to determine what the regulatory stance is in terms of mobile money in South Africa. The Financial Action Task Force (FATF) is, however, currently focusing attention on the effect which mobile money may have on financial integrity. The latest FATF Recommendations make provision for several anti-money laundering controls which are specifically applicable to mobile money, including controls regarding money or value transfer services and new technologies. While it is always difficult to balance financial integrity and financial inclusion, the risk-based approach makes it possible for governments to implement effective antimoney laundering measures, thereby preserving financial integrity, without the need to compromise on financial inclusion objectives. The fact that South Africa has not fully adopted a risk-based approach is a problem which needs to be addressed if mobile money is to deliver on its promises for financial inclusion, without being detrimental to financial integrity.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/694
10.4314/pelj.v18i5.12
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1636–1668
1727-3781
eng
https://perjournal.co.za/article/view/694/550
https://perjournal.co.za/article/view/694/3153
https://perjournal.co.za/article/view/694/8558
Copyright (c) 2015 M Kersop, SF Du Toit
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/695
2019-04-15T08:12:09Z
per:ART
driver
Anti-Money Laundering Regulations and the Effective Use of Mobile Money in South Africa – Part 2
Kersop, M
Du Toit, SF
Mobile money
financial inclusion
financial integrity
risk-based approach
Mobile financial services, specifically mobile money, has the potential to expand access to financial services to millions of unbanked people in South Africa. As such, it looks very promising in terms of financial inclusion. However, concerns exist that mobile money can be detrimental to financial integrity since there are several proven risk factors linked to mobile financial services. These risk factors make mobile money very susceptible to money laundering. The potential for abuse and the need for appropriate controls is therefore something which cannot be ignored. While the South African legislator has made provision for comprehensive anti-money laundering preventative measures by means of the Financial Intelligence Centre Act 38 of 2001, there exists no South African legislation explicitly concerned with mobile money. It is therefore difficult to determine what the regulatory stance is in terms of mobile money in South Africa. The Financial Action Task Force (FATF) is, however, currently focusing attention on the effect which mobile money may have on financial integrity. The latest FATF Recommendations make provision for several anti-money laundering controls which are specifically applicable to mobile money, including controls regarding money or value transfer services and new technologies. While it is always difficult to balance financial integrity and financial inclusion, the risk-based approach makes it possible for governments to implement effective antimoney laundering measures, thereby preserving financial integrity, without the need to compromise on financial inclusion objectives. The fact that South Africa has not fully adopted a risk-based approach is a problem which needs to be addressed if mobile money is to deliver on its promises for financial inclusion, without being detrimental to financial integrity.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/epub+zip
https://perjournal.co.za/article/view/695
10.4314/pelj.v18i5.13
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1602–1635
1727-3781
eng
https://perjournal.co.za/article/view/695/551
https://perjournal.co.za/article/view/695/8559
Copyright (c) 2015 M Kersop, SF Du Toit
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/696
2021-09-20T13:17:59Z
per:ART
driver
The Right of the Child to Care and Constitutional Damages for the Loss of Parental Care: Some Thoughts On M v Minister of Police and Minister of Police v Mboweni
Robinson, JA
Prinsloo, Ronelle
Parental care
Children's Act 38 of 2005
constitutional damages
appropriate relief
In the a quo judgment in M v Minister of Police a radical new approach was followed in respect of claims for loss of parental care. The issue before court was whether a child whose parent has died as a result of the wrongful conduct of the South African Police Services may sue for damages arising from the child's constitutional right to parental care in terms of section 28(1)(b). The question which the Court had to answer was whether a claim for damages may be instituted on the grounds that children are as a result of the wrongful death of their father deprived of their constitutionally entrenched right to parental care. This contribution reflects on the reasoning of the different courts and the relevance of same for the debate regarding the care of children in terms of section 28(1)(b) of the Constitution and section 1 of the Children's Act 38 of 2005.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/696
10.4314/pelj.v18i5.14
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1669–1690
1727-3781
eng
https://perjournal.co.za/article/view/696/576
https://perjournal.co.za/article/view/696/3154
https://perjournal.co.za/article/view/696/8560
Copyright (c) 2015 JA Robinson, R Prinsloo
http://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/697
2019-04-15T08:13:55Z
per:ART
driver
Riglyne vir die Hersiening van Omgewingsverwante Wetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel
Snyman, I
Gildenhuys, A
Environmental-related legislation
legislative review
natural agricultural resources
right to access to sufficient food
sectoral legislation
The development of legislation for the progressive realisation of the right to access to sufficient food is labelled as an international and national objective. Section 27(2) of the Constitution of the Republic of South Africa, 1996 assigns a compulsory mandate to the South African government to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to sufficient food. The United Nations' Food and Agricultural Organization (FAO) proposes a three-level strategy for the implementation of the right to food on a national legislative level, namely through: constitutional recognition, the implementation of a food framework law and the reviewing of relevant sectoral legislation. This contribution focuses on the last level of legislative provisioning, namely the reviewing of relevant sectoral legislation which influences, or possibly can, influence the realisation of the right to access to sufficient food. The right to access to sufficient food has multidimensional, interdisciplinary and crosssectoral characteristics and consequently various sectors are involved in the realisation of the right to access to sufficient food. The FAO determines that the intended purpose will be to identify and review all sectoral legislation that might influence the availability, stability, access and adequacy of food, by means of a proposed reviewing process. The suggested reviewing process of the FAO is comprehensive and diverse; therefore the focus of this contribution is based on the reviewing of relevant environmental-related legislation only. The FAO does not make recommendations with regard to the specific aspects that need to be incorporated in environmental-related legislation to contribute to the progressive realisation of the right to access to sufficient food (in other words the aspects against which environmental-related legislation can be evaluated). Therefore this contribution contains compiled guidelines that can be used to review environmental-related legislation.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/697
10.4314/pelj.v18i5.15
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1691–1724
1727-3781
eng
https://perjournal.co.za/article/view/697/552
https://perjournal.co.za/article/view/697/3155
https://perjournal.co.za/article/view/697/8561
Copyright (c) 2015 I Snyman, A Gildenhuys
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/698
2019-04-15T08:14:45Z
per:ART
driver
Valuation in the Constitutional Era
Du Plessis, WJ
Property clause
expropriation
compensation
valuation
market value
The Constitution brought about a new compensation regime for expropriations. Compensation for expropriation must now be "just and equitable". Whereas before the Constitution came into force market value played a central role in compensation for expropriation, market value is now only one factor or aspect of compensation that the court needs to take into account. Yet we find that courts tend to focus on market value and to still employ the valuation methods used to calculate market value. This article argues that the methods used to calculate the market value, once thought to be objective, are not as objective as was believed. While it is impossible to give judges specific tools for the assessment of market value, this article provides guidelines on how the calculation of compensation should be approached.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/698
10.4314/pelj.v18i5.16
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1725–1759
1727-3781
eng
https://perjournal.co.za/article/view/698/553
https://perjournal.co.za/article/view/698/3156
https://perjournal.co.za/article/view/698/8562
Copyright (c) 2015 WJ Du Plessis
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/699
2019-04-15T08:25:46Z
per:ART
driver
Finding Property in New Places – Property in Cyber and Outer Space
Erlank, W
Virtual property
property law
cyber law
objects of property
ownership
property in space
space law
The fields of virtual property and property in space are both new areas of property law that could not have been envisaged a hundred years ago. In both of these new fields, things and other objects of property are located in places that have not previously been considered capable of harbouring property in the traditional sense. New technological and societal developments have resulted in both the creation of property (in virtual worlds) and the ability to get to property (in space), and questions have to be asked about how property law can and will function in these new areas. This article discusses some of the important property questions posed by the creation of these new fields of property law. Although there is some correlation between the unique questions posed by the environments that these new areas of law deal with, each of the fields has some idiosyncrasies that are influenced to a large degree by the location of the property objects in each area. This article highlights these similarities, while simultaneously pointing out some of the main differences between them and traditional (Earth-based) property law.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/699
10.4314/pelj.v18i5.17
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1760–1795
1727-3781
eng
https://perjournal.co.za/article/view/699/554
https://perjournal.co.za/article/view/699/3157
https://perjournal.co.za/article/view/699/8563
Copyright (c) 2015 W Erlank
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/700
2019-02-28T08:52:46Z
per:ART
driver
Die Geldigheidsvereistes van 'n Trust opnuut Ondersoek: Khabola v Ralithabo [2011] ZAFSHC 62
Vorster, A
Coetzee, JP
Trust
trust deed
valid trust
basic requirements
The trust is universally recognised and used. It is generally accepted that trust deeds meet the basic requirements. However, it is not always that simple and the courts are repeatedly forced to take deeds of trust under scrutiny. In such cases the court has to rule on the validity of the trust, the locus standi of the parties, trust administration, the intent of the parties or what the implications of an invalid trust are for previous and current agreements. Similar problems arose in Khabola v Ralithabo. The authors discuss this verdict and show that there is still much uncertainty on how certain trust aspects have to be dealt with, and emphasise the importance of testing every trust deed according to the essential requirements of a valid trust.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/700
10.4314/pelj.v18i5.18
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1796–1810
1727-3781
eng
https://perjournal.co.za/article/view/700/555
https://perjournal.co.za/article/view/700/3158
https://perjournal.co.za/article/view/700/8568
Copyright (c) 2015 A Vorster, JP Coetzee
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/701
2019-02-28T08:52:46Z
per:ART
driver
In Search of Alternatives or Enhancements to Collective Bargaining in South Africa: are Workplace Forums a Viable Option?
Botha, MM
Collective bargaining
workplace forums
co-determination
trade unions
adversarialism
consultation
information
decision-making
joint decisionmaking
conditions of employment
distributive issues
non-distributive issues
Collective bargaining (coupled with the right to strike) has become a primary means to force employers through negotiation to achieve the improvement of standards and conditions of employment. The South African labour market has been plagued by unprotected strikes as well as violent and lawless behaviour during both protected and unprotected strikes. Some have said that the collective bargaining process is in trouble and has failed the objectives intended by the Labour Relations Act. The fact that collective bargaining in South Africa and elsewhere is quite adversarial puts these criticisms into the spotlight again. Calls to explore a participatory structure, where distributive and non-distributive issues are separated from each other, supplementary to collective bargaining have been made again. What immediately comes to mind is the system of workplace forums, which has been unsuccessful in South Africa thus far.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/701
10.4314/pelj.v18i5.19
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1811–1844
1727-3781
eng
https://perjournal.co.za/article/view/701/556
https://perjournal.co.za/article/view/701/3160
https://perjournal.co.za/article/view/701/8571
Copyright (c) 2015 MM Botha
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/702
2019-04-15T08:29:58Z
per:Note
driver
The "Brown" Environmental Agenda and the Constitutional Duties of Local Government in South Africa: A Conceptual Introduction (note)
Du Plessis, AA
South African local government
brown environmental agenda
green environmental agenda
local environmental governance
constitutional environmental right
This note explores the interrelationship between ecologically sustainable development (the green environmental agenda) and pro-poor urban development and environmental health (the brown environmental agenda) in relation to local government in South Africa. The meaning and relevance of the brown agenda versus the green agenda in environmental governance are discussed in general. This discussion subsequently feeds into the argument that South Africa's constitutional environmental right also foresees the advancement of the brown environmental agenda, which has implications for the interpretation and enforcement of local government's service delivery mandate. This link between municipal service delivery and the environmental right further informs understanding of what is required of government to fulfill this right. This paper is thus devoted to an introductory conceptual framing of South Africa's environmental right that goes beyond the green agenda. This impacts on how the constitutional duties of municipalities are interpreted and executed.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
application/pdf
application/epub+zip
https://perjournal.co.za/article/view/702
10.17159/1727-3781/2015/v18i5a702
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1845–1880
1727-3781
eng
https://perjournal.co.za/article/view/702/557
https://perjournal.co.za/article/view/702/8601
Copyright (c) 2015 AA Du Plessis
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/703
2019-04-15T08:30:50Z
per:CN
driver
Cloete Murray v Firstrand Bank Ltd T/A Wesbank [2015] ZASCA 39 (case note)
Laubscher, M
Language of provision as departure point in interpretation of statutes
together with context and purpose of provision
section 39(2) of Constitution
interpretation of section 133(1) of Companies Act
enforcement action and cancellation of an agreement
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.
---------------------
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
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/703
10.4314/pelj.v18i5.21
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1881-1899
1727-3781
eng
https://perjournal.co.za/article/view/703/558
https://perjournal.co.za/article/view/703/3168
https://perjournal.co.za/article/view/703/8605
Copyright (c) 2015 M Laubscher
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/705
2019-02-28T08:52:46Z
per:ART
driver
Public Litigation and the Concept of "Deference" in Judicial Review
Klaasen, A
Public litigation
private litigation
judicial activism
judicial review
judicial restraint
coherent theory of judicial review
culture of deference
culture of justification
The Constitutional Court is the highest court in all constitutional matters and thus decides appeals from other courts in disputes involving natural and juristic persons and the state, including criminal matters, if the matter is a constitutional matter or an issue connected with a decision on a constitutional matter. The Court may hear any matter, if the Constitutional Court grants leave to appeal because the matter raises an arguable point of law of general public importance that ought to be considered by that court. The Constitution makes it clear that courts are independent and subject only to the Constitution and the law. All persons to whom and organs of state to which a court order or decision applies are bound by it. It is important that the courts employ a standard of judicial review that is compatible with constitutional principles and values. The Constitutional Court subscribes to a standard of “deference” in judicial review. This principle recognises the need to protect the institutional character of each of the three arms of government in a manner that will prevent their ability to discharge their constitutional role being undermined. The principle of deference concerns the function of the judge in mediating between the law and legislative and executive politics. Around the world, litigation or judicial review has become immensely popular as a treatment for the pains of modern governance. South Africa is no exception to this phenomenon. This activism by litigation consists of efforts to promote, impede, or direct social, political, economic, or environmental change, or stasis. Organisations and individuals often disregard or distrust the political process and approach the courts to advance their own interest and to protect their own rights. Litigants seek to enforce constitutional principles and values that affect others as directly as them and that are valued for moral or political reasons and are independent of economic interests. The relief claimed aims to restructure the public organisation or conduct by the legislature and/or executive to eliminate a threat to constitutional principles and values enshrined in the Constitution. The South African Constitution has provided the public litigant with the freedom to bring matters before the courts not possible in terms of the common law. This has led to a departure from the traditional conception of litigation and consequently the remedies that courts have to offer. Courts have the duty to intervene in constitutional violations, but they have a prerogative to decide when and to what extent to intervene when such a violation occurred within the domain of other branches of government. The decision on whether to intervene and then, to what extent, will depend on the standard of judicial review the courts employ. Davis proposes a culture of justification for judicial review that takes into account the democratic prerogative of the elected arms of government to fashion and implement public policy within the framework of the Constitution. This culture accepts that the role of judicial review is to foster a culture of democracy, and that the judiciary must commence from a standpoint that it operates within a governmental system that is based upon a doctrine of separation of powers. Although Davis’s work is meant as only as a framework for a coherent theory of judicial review, the question of justification and participation advances other constitutional values such as openness, non-discrimination, accountability and participation to judicial scrutiny. It is submitted that the culture of justification meets the tenets of judicial review as set out by both Mureinik and Dyzenhaus and finds application in an objective interpretation of constitutional provisions and values. The culture of justification ensures that the government justifies its decisions to the governed; it promotes transparent government and allows the citizens to participate in decisions affecting them.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/705
10.4314/pelj.v18i5.22
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1900–1929
1727-3781
eng
https://perjournal.co.za/article/view/705/559
https://perjournal.co.za/article/view/705/3161
https://perjournal.co.za/article/view/705/8575
Copyright (c) 2015 A Klaasen
https://creativecommons.org/licenses/by/4.0
oai:journals.assaf.org.za:article/706
2019-04-15T08:21:50Z
per:ART
driver
“Corrective Rape" of Lesbians in the Era of Transformative Constitutionalism in South Africa
Koraan, R
Geduld, A
Corrective rape
transformative constitutionalism
heteronormativity
There have been numerous incidents of “corrective” rape of lesbians in recent years. This article examines the adequacy of the existing South African legal framework to deal with incidents of “corrective” rape against the background of transformative constitutionalism. The various definitions of transformative constitutionalism and an understanding of heteronormativity are explored. The article proceeds to examine “corrective” rape and concludes with suggestions as to how legislation should make provision for “corrective” rape.
Faculty of Law, North-West University, South Africa
2015-08-25
info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
application/pdf
application/xml
application/epub+zip
https://perjournal.co.za/article/view/706
10.4314/pelj.v18i5.23
Potchefstroom Electronic Law Journal; Vol. 18 No. 5 (2015): Special Edition; 1930–1952
1727-3781
eng
https://perjournal.co.za/article/view/706/560
https://perjournal.co.za/article/view/706/3162
https://perjournal.co.za/article/view/706/8581
Copyright (c) 2015 R Koraan, A Geduld
https://creativecommons.org/licenses/by/4.0
824c45b6732c96749f25d0999ecb67c3