2024-03-29T15:09:30Z
https://perjournal.co.za/oai
oai:journals.assaf.org.za:article/14
2019-04-15T06:35:42Z
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v2
https://perjournal.co.za/article/view/14
2019-04-15T06:35:42Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 2951-2981
Domestic Partners and "The Choice Argument": Quo Vadis?
Peer-reviewed Article
Bester, Ben Coetzee; University of Pretoria
Louw, Anne; University of Pretoria
2015-02-21
url:https://perjournal.co.za/article/view/14
Domestic partners
Domestic partnerships
Choice argument
Contextualised model of choice
Functional approach to family law
Draft Domestic Partnerships Bill of 2008
en_US
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.
oai:journals.assaf.org.za:article/15
2019-04-15T06:39:06Z
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v2
https://perjournal.co.za/article/view/15
2019-04-15T06:39:06Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 2983-3031
When does State Interference with Property (now) Amount to Expropriation? An Analysis of the Agri SA Court's State Acquisition Requirement (Part I)
Peer-reviewed Article
Marais, Ernst Jacobus; Stellenbosch University
2015-02-21
url:https://perjournal.co.za/article/view/15
Expropriation
Deprivation
Section 25
Property clause
State acquisition
Constitutional property law
Agri SA case
en_US
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.
oai:journals.assaf.org.za:article/17
2019-04-15T06:42:57Z
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v2
https://perjournal.co.za/article/view/17
2019-04-15T06:42:57Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 3072-3101
Leveraging Traditional Knowledge on the Medicinal Uses of Plants within the Patent System: The Digitisation and Disclosure of Knowledge in South Africa
Peer-reviewed Article
Amechi, Emeka Polycarp; University of South Africa
2015-02-21
url:https://perjournal.co.za/article/view/17
Traditional knowledge
Medicinal uses of plants
National recordal system
Prior art
Disclosure of origins
Patent
en_US
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).
oai:journals.assaf.org.za:article/18
2019-04-15T06:46:22Z
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v2
https://perjournal.co.za/article/view/18
2019-04-15T06:46:22Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 3102-3131
The South African Companies Act and the Realisation of Corporate Human Rights Responsibilities
Peer-reviewed Article
Gwanyanya, Manson G.; University of Witwatersrand
2015-02-21
url:https://perjournal.co.za/article/view/18
Human rights
Responsibilities
Realisation
Obligations
Companies
Constitution
en_US
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.
oai:journals.assaf.org.za:article/19
2019-04-15T06:46:58Z
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v2
https://perjournal.co.za/article/view/19
2019-04-15T06:46:58Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 3133-3158
A Future for the Doctrine of Substantive Legitimate Expectation? The Implications of Kwazulu-Natal Joint Liaison Committee v Mec for Education, Kwazulu Natal
Peer-reviewed Article
Murcott, Melanie; University of Pretoria
2015-02-21
url:https://perjournal.co.za/article/view/19
Substantive legitimate expectation
Publicly promulgated promise to pay
Rationality
en_US
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".
oai:journals.assaf.org.za:article/20
2019-04-15T06:49:59Z
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v2
https://perjournal.co.za/article/view/20
2019-04-15T06:49:59Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 3160-3195
Inclusive Basic Education in South Africa: Issues in its Conceptualisation and Implementation
Peer-reviewed Article
Murungi, Lucyline Nkatha; University of the Western Cape
2015-02-21
url:https://perjournal.co.za/article/view/20
Children with disabilities
Basic education
Inclusive education
Special education
Special needs education
Right to education
en_US
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.
oai:journals.assaf.org.za:article/21
2019-04-15T06:53:03Z
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v2
https://perjournal.co.za/article/view/21
2019-04-15T06:53:03Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 3197-3236
"Just Piles of Rocks to Developers but Places of Worship to Native Americans" - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities
Peer-reviewed Article
Ratiba, Matome M.; University of South Africa
2015-02-21
url:https://perjournal.co.za/article/view/21
Constitutional law
Earth jurisprudence
Cultural practices
Freedom of religion
Religious rituals
Protection of sacred lands
en_US
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.
oai:journals.assaf.org.za:article/555
2019-04-25T09:39:09Z
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v2
https://perjournal.co.za/article/view/555
2019-04-25T09:39:09Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-38
Employers' Statutory Vicarious Liability in Terms of the Protection of Personal Information Act
Peer-reviewed Article
Millard, Daleen; Professor of Private law, University of Johannesburg
Bascerano, Eugene Gustav; Legal Advisor, Office of the General Council, University of Johannesburg.
2017-05-17
url:https://perjournal.co.za/article/view/555
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
en_US
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.
oai:journals.assaf.org.za:article/565
2021-07-26T11:25:03Z
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v2
https://perjournal.co.za/article/view/565
2021-07-26T11:25:03Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 68-110
Protecting Personal Information in the Era of Identity Theft: Just how Safe is our Personal Information from Identity Thieves?
Peer-reviewed Article
Cassim, F
2015-03-31
url:https://perjournal.co.za/article/view/565
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
en_US
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.
oai:journals.assaf.org.za:article/578
2019-04-25T10:22:17Z
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v2
https://perjournal.co.za/article/view/578
2019-04-25T10:22:17Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-54
At the Intersection between Expropriation Law and Administrative Law: Two Critical Views on the Constitutional Court's Arun Judgment
Peer-reviewed Article
Marais, Ernst; University of Johannesburg
Maree, PJH; Stellenbosch University
2017-05-17
url:https://perjournal.co.za/article/view/578
section 33
administrative law
lawfulness
legality principle
subsidiarity principles
expropriation
deprivation
section 25
property clause
constitutional property law
Arun case
en_US
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.
oai:journals.assaf.org.za:article/579
2019-04-15T07:03:48Z
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v2
https://perjournal.co.za/article/view/579
2019-04-15T07:03:48Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 1-67
Responsibilities of Companies towards Employees
Peer-reviewed Article
Botha, MM
2015-03-31
url:https://perjournal.co.za/article/view/579
Corporate governance
corporate law
corporate social responsibility
sustainability
corporate citizenship
employee participation
decision-making
stakeholders
shareholders
managerial prerogative
social justice
en_US
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.
oai:journals.assaf.org.za:article/580
2019-04-15T07:05:20Z
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v2
https://perjournal.co.za/article/view/580
2019-04-15T07:05:20Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 111-148
The Regulation of Market Manipulation in Australia: A Historical Comparative Perspective
Peer-reviewed Article
Chitimira, H
2015-03-31
url:https://perjournal.co.za/article/view/580
Enforcement
market abuse
regulation
financial markets
market manipulation
en_US
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.
oai:journals.assaf.org.za:article/581
2021-07-26T11:37:14Z
per:ART
driver
v2
https://perjournal.co.za/article/view/581
2021-07-26T11:37:14Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 149-178
Suggested Safeguards and Limitations for Effective and Permissible Parenting Coordination (Facilitation or Case Management) in South Africa
Peer-reviewed Article
De Jong, M
2015-03-31
url:https://perjournal.co.za/article/view/581
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
en_US
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.
oai:journals.assaf.org.za:article/582
2019-04-15T07:07:42Z
per:ART
driver
v2
https://perjournal.co.za/article/view/582
2019-04-15T07:07:42Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 179-222
Exploring the Cultural Dimensions of the Right to the Highest Attainable Standard of Health
Peer-reviewed Article
Donders, YM
2015-03-31
url:https://perjournal.co.za/article/view/582
Culture
cultural diversity
health
human rights
right to health
traditional practices
en_US
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.
oai:journals.assaf.org.za:article/583
2019-02-28T08:52:03Z
per:ART
driver
v2
https://perjournal.co.za/article/view/583
2019-02-28T08:52:03Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 223-273
Law's Poverty
Peer-reviewed Article
Modiri, JM
2015-03-31
url:https://perjournal.co.za/article/view/583
Racialised poverty
oppression
imaginary domain
precarity
theories of justice
rights discourse
critical theory
en_US
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.
oai:journals.assaf.org.za:article/584
2019-04-25T10:50:03Z
per:ART
driver
v2
https://perjournal.co.za/article/view/584
2019-04-25T10:50:03Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-48
Organic Food Certification in South Africa: A Private Sector Mechanism in Need of State Regulation?
Peer-reviewed Article
Lim Tung, Odile Juliette; North West University
2017-05-17
url:https://perjournal.co.za/article/view/584
organic food
organic in conversion
certification
accreditation
regulation
standards
en_US
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.
oai:journals.assaf.org.za:article/585
2019-04-15T07:08:24Z
per:ART
driver
v2
https://perjournal.co.za/article/view/585
2019-04-15T07:08:24Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 274-305
Apartheid's Alcatraz: The Barberton Prison Complex During the Early 1980s - Part One
Peer-reviewed Article
Peté, SA
2015-03-31
url:https://perjournal.co.za/article/view/585
Barberton Prison Complex
Barberton Prison Farm
prison violence
apartheid prisons
prison deaths
prison torture
prisoner heat exhaustion
heat exhaustion trial
en_US
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.
oai:journals.assaf.org.za:article/586
2021-07-26T12:11:28Z
per:ART
driver
v2
https://perjournal.co.za/article/view/586
2021-07-26T12:11:28Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 332-361
Provisional Thoughts on Limitations to the Right to Procreate
Peer-reviewed Article
Robinson, JA
2015-03-31
url:https://perjournal.co.za/article/view/586
Limitation of rights
right to procreate
overpopulation
limitation of the right to procreate
procreation
en_US
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.
oai:journals.assaf.org.za:article/587
2019-02-28T08:52:03Z
per:ART
driver
v2
https://perjournal.co.za/article/view/587
2019-02-28T08:52:03Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 362-396
Making a Case for a Development-Driven Approach to Law as a Linchpin for the Post-2015 Development Agenda
Peer-reviewed Article
Soyeju, O
2015-03-31
url:https://perjournal.co.za/article/view/587
Law
development
development-driven law
development law
development goals
development strategy
Millennium Development Goals
Millennium Declaration
Post-2015 development agenda
MDGs
en_US
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.
oai:journals.assaf.org.za:article/588
2022-05-10T12:41:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/588
2022-05-10T12:41:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 397-428
Section 294 of the Children's Act: Do Roots Really Matter?
Peer-reviewed Article
Van Niekerk, C
2015-03-31
url:https://perjournal.co.za/article/view/588
Surrogacy
surrogate motherhood agreemen
intention to parent
genetic link
commissioning parents
infertile
en_US
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.
oai:journals.assaf.org.za:article/590
2019-02-28T08:52:03Z
per:ART
driver
v2
https://perjournal.co.za/article/view/590
2019-02-28T08:52:03Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 306-331
Apartheid's Alcatraz: The Barberton Prison Complex During the Early 1980s - Part Two
Peer-reviewed Article
Peté, SA
2015-03-31
url:https://perjournal.co.za/article/view/590
Barberton Prison Complex
Barberton Prison Farm
prison violence
apartheid prisons
prison deaths
prison torture
prisoner heat exhaustion
heat exhaustion trial
en_US
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.
oai:journals.assaf.org.za:article/594
2019-02-28T08:52:17Z
per:ART
driver
v2
https://perjournal.co.za/article/view/594
2019-02-28T08:52:17Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 3 (2015); 449-486
The AU Model Law on Universal Jurisdiction: An African Response to Western Prosecutions based on the Universality Principle
Peer-reviewed Article
Dube, A
2015-04-12
url:https://perjournal.co.za/article/view/594
en_US
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.
oai:journals.assaf.org.za:article/595
2019-04-15T07:14:07Z
per:ART
driver
v2
https://perjournal.co.za/article/view/595
2019-04-15T07:14:07Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 3 (2015); 487-529
Selected Legal Challenges Relating to the Military use of Outer Space, with Specific Reference to Article IV of the Outer Space Treaty
Peer-reviewed Article
Ferreira-Snyman, A
2015-04-12
url:https://perjournal.co.za/article/view/595
Aggression
militarisation
Outer Space Treaty
peaceful purposes
satellite
self-defence
soft law
space debris
space security
space weapon
use of force
weaponisation
en_US
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.
oai:journals.assaf.org.za:article/596
2019-04-15T07:14:37Z
per:ART
driver
v2
https://perjournal.co.za/article/view/596
2019-04-15T07:14:37Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 3 (2015); 530-567
No longer in suspense: Clarifying the Human Rights Jurisdiction of the SADC Tribunal
Peer-reviewed Article
Phooko, MR
2015-04-12
url:https://perjournal.co.za/article/view/596
Human Rights
Jurisdiction
SADC Tribunal
International Court of Justice
en_US
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.
oai:journals.assaf.org.za:article/597
2019-02-28T08:52:17Z
per:ART
driver
v2
https://perjournal.co.za/article/view/597
2019-02-28T08:52:17Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 3 (2015); 568-592
Affiliation to a New Customary Law in Post-Apartheid South Africa
Peer-reviewed Article
Nwauche, ES
2015-04-12
url:https://perjournal.co.za/article/view/597
Customary Law
Post-Apartheid
Acquisition of Customary Law
Citizenship
Sub-national Identit
en_US
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.
oai:journals.assaf.org.za:article/598
2019-04-12T06:21:52Z
per:ART
driver
v2
https://perjournal.co.za/article/view/598
2019-04-12T06:21:52Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 3 (2015); 668-733
The Employment Equity Act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid South Africa) (Part 1)
Peer-reviewed Article
Louw, AM
2015-04-12
url:https://perjournal.co.za/article/view/598
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
en_US
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.
oai:journals.assaf.org.za:article/604
2019-02-28T08:52:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/604
2019-02-28T08:52:31Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 782-815
Lessons for the SADC from the Indian Case of Novartis AG v Union of India
Peer-reviewed Article
Ndlovu, L
2015-06-12
url:https://perjournal.co.za/article/view/604
Access to medicines
evergreening
incremental patenting
intellectual property rights
TRIPS flexibilities
Southern African Development Community
en_US
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.
oai:journals.assaf.org.za:article/605
2019-02-28T08:52:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/605
2019-02-28T08:52:31Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 816-846
The Independence of South African Judges: A Constitutional and Legislative Perspective
Peer-reviewed Article
Siyo, L
Mubangizi, JC
2015-06-12
url:https://perjournal.co.za/article/view/605
Judiciary
judicial independence
legislation
Constitution
impartiality
bias
judicial appointments
security of tenure
remuneration
complaints
courts
en_US
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.
oai:journals.assaf.org.za:article/606
2019-04-15T07:21:33Z
per:ART
driver
v2
https://perjournal.co.za/article/view/606
2019-04-15T07:21:33Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 847-900
Rethinking Violence, Reconciliation and Reconstruction in Burundi
Peer-reviewed Article
Ndimurwimo, LA
Mbao, MLM
2015-06-12
url:https://perjournal.co.za/article/view/606
Armed violence
human rights violations
reconciliation and reconstruction
post-conflict Burundi
en_US
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.
oai:journals.assaf.org.za:article/607
2019-02-28T08:52:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/607
2019-02-28T08:52:31Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 901-942
A Contextual Analysis of the Hate Speech Provisions of the Equality Act
Peer-reviewed Article
Marais, ME
Pretorius, JL
2015-06-12
url:https://perjournal.co.za/article/view/607
Hate speech
unfair discrimination
categorical prohibition
freedom of expression
human dignity
bona fide
publish
information
harmful
heal
en_US
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.
oai:journals.assaf.org.za:article/608
2019-02-28T08:52:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/608
2019-02-28T08:52:31Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 943-968
Public Participation and Water Use Rights
Peer-reviewed Article
King, P
Reddell, C
2015-06-12
url:https://perjournal.co.za/article/view/608
Administrative action
administrative justice
environmental law
environmental rights
constitutional law
constitutional rights
integrated environmental authorisations
One Environmental System
procedural fairness
public participation
en_US
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.
oai:journals.assaf.org.za:article/609
2019-04-11T13:31:24Z
per:ART
driver
v2
https://perjournal.co.za/article/view/609
2019-04-11T13:31:24Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 969-992
Legislation as a Critical Tool in addressing Social Change in South Africa: Lessons from Mayelane v Ngwenyama
Peer-reviewed Article
Ozoemena, RN
2015-06-12
url:https://perjournal.co.za/article/view/609
Living law
consent
legislation
social change
customary law
gender justice
customary marriages
en_US
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.
oai:journals.assaf.org.za:article/610
2019-04-11T13:35:14Z
per:ART
driver
v2
https://perjournal.co.za/article/view/610
2019-04-11T13:35:14Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 993-1033
Public-private Partnerships in Local Disaster Management: A Panacea to all Local Disaster Management Ills?
Peer-reviewed Article
Van der Berg, A
2015-06-12
url:https://perjournal.co.za/article/view/610
Local government
local disaster management
disaster management
public-private partnerships
en_US
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.
oai:journals.assaf.org.za:article/611
2019-02-28T08:52:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/611
2019-02-28T08:52:31Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 1034-1090
The Constitutional Mandate for Social Welfare – Systemic Differences and links between Property, Land Rights and Housing Rights
Peer-reviewed Article
Van der Walt, AJ
Viljoen, S
2015-06-12
url:https://perjournal.co.za/article/view/611
Property law
constitutional property law
land law
land reform
restorative justice
housing law
constitutional interpretation
en_US
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.
oai:journals.assaf.org.za:article/612
2019-02-28T08:52:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/612
2019-02-28T08:52:31Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 1091-1124
The Consumer Protection Act 68 of 2008 and Procedural Fairness in Consumer Contracts
Peer-reviewed Article
Stoop, PN
2015-06-12
url:https://perjournal.co.za/article/view/612
Consumer protection
unfair contracts
contractual fairness
procedural fairness
en_US
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.
oai:journals.assaf.org.za:article/613
2019-04-12T06:02:17Z
per:ART
driver
v2
https://perjournal.co.za/article/view/613
2019-04-12T06:02:17Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 1125-1160
Judicial "Translation" and Contextualisation of Values: Rethinking the Development of Customary Law in Mayelane
Peer-reviewed Article
Lewis, I
2015-06-12
url:https://perjournal.co.za/article/view/613
Pluralism
customary law
international and constitutional rights law
role of courts
polygynous marriage
women
dignity
en_US
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.
oai:journals.assaf.org.za:article/614
2019-02-28T08:52:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/614
2019-02-28T08:52:31Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 1161-1186
Avoiding Mazibuko: Water Security and Constitutional Rights in Southern African Case Law
Peer-reviewed Article
Couzens, E
2015-06-12
url:https://perjournal.co.za/article/view/614
Access to water
City of Cape Town v Strümpher
Mazibuko v City of Johanesburg
Mushoriwa v City of Harare
spoliation
water rights
en_US
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.
oai:journals.assaf.org.za:article/615
2019-04-15T07:45:26Z
per:ART
driver
v2
https://perjournal.co.za/article/view/615
2019-04-15T07:45:26Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 1187-1204
The Incorporation of Double Taxation Agreements into South African Domestic Law
Peer-reviewed Article
Du Plessis, I
2015-06-12
url:https://perjournal.co.za/article/view/615
Double taxation agreement
income tax
self-executing
taxation
treaty
treaty override
en_US
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.
oai:journals.assaf.org.za:article/616
2019-04-12T06:07:29Z
per:ART
driver
v2
https://perjournal.co.za/article/view/616
2019-04-12T06:07:29Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 4 (2015); 1205-1250
Deliberating the Rule of Law and Constitutional Supremacy from the Perspective of the Factual Dimension of Law
Peer-reviewed Article
Malan, K
2015-06-12
url:https://perjournal.co.za/article/view/616
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
en_US
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.
oai:journals.assaf.org.za:article/619
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/619
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2229-2267
Proportionality and the limitation clauses of the South African Bill of Rights
Peer-reviewed Article
Rautenbach, IM
2014-11-14
url:https://perjournal.co.za/article/view/619
Limitation of rights
bills of rights
proportionality
elements of proportionality
history of proportionality in the South African Constitution
balancing
weight-formula
en_US
"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.
oai:journals.assaf.org.za:article/620
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/620
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2269-2312
The Regulation of electronic money institutions in the SADC region: Some lessons from the EU
Peer-reviewed Article
Tuba, MD
2014-11-14
url:https://perjournal.co.za/article/view/620
Bank Directives
electronic money
European Union
hardware-based e-money
initial capital
payment systems
prudential requirements
SADC
software-based e-money
technology-neutral
en_US
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.
oai:journals.assaf.org.za:article/621
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/621
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2314-2354
Disqualification for non-compliance with public tender conditions
Peer-reviewed Article
Bolton, P
2014-11-14
url:https://perjournal.co.za/article/view/621
Acquisition
disqualification
exclusion
goods and services
government
procurement
public specifications
tenders
en_US
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.
oai:journals.assaf.org.za:article/622
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/622
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2356-2410
Arbitration of family separation issues – a useful adjunct to mediation and the court process
Peer-reviewed Article
De Jong, M
2014-11-14
url:https://perjournal.co.za/article/view/622
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
en_US
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.
oai:journals.assaf.org.za:article/623
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/623
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2412-2450
Transparency, trust and security: An evaluation of the insurer's precontractual duties
Peer-reviewed Article
Millard, D
Kuschke, B
2014-11-14
url:https://perjournal.co.za/article/view/623
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
en_US
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.
oai:journals.assaf.org.za:article/643
2019-02-28T08:50:58Z
per:ART
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v2
https://perjournal.co.za/article/view/643
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2452-2486
The liability of churches for the historical sexual assault of children by priests
Peer-reviewed Article
Calitz, K
2014-11-14
url:https://perjournal.co.za/article/view/643
Vicarious liability
church
priests
sexual abuse
children
en_US
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.
oai:journals.assaf.org.za:article/644
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/644
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2488-2524
A non-member spouse's entitlement to the member's pension interest
Peer-reviewed Article
Marumoagae, MC
2014-11-14
url:https://perjournal.co.za/article/view/644
Entitlement
pension interest
non-member spouse
member spouse
clean break principle
divorce
joint estate
en_US
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.
oai:journals.assaf.org.za:article/645
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/645
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2526-2553
The legal nature of a lien in South African law
Peer-reviewed Article
Wiese, M
2014-11-14
url:https://perjournal.co.za/article/view/645
Lien (right of retention)
capacity to withhold
real security right
real right
personal right
defence against rei vindicatio
exceptio non adimpleti contractus
en_US
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.
oai:journals.assaf.org.za:article/646
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/646
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2555-2599
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
Peer-reviewed Article
Viljoen, F
Orago, N
2014-11-14
url:https://perjournal.co.za/article/view/646
en_US
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.
oai:journals.assaf.org.za:article/647
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/647
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2601-2634
The Interplay between international law and labour law in South Africa: Piercing the diplomatic immunity veil
Peer-reviewed Article
Gericke, SB
2014-11-14
url:https://perjournal.co.za/article/view/647
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
en_US
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.
oai:journals.assaf.org.za:article/648
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/648
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2636-2665
The legal implications of the economic realities of artificially manipulating a decrease/increase of earnings per share - if any
Peer-reviewed Article
Kilian, CG
Snyman-Van Deventer, E
2014-11-14
url:https://perjournal.co.za/article/view/648
Earnings per share
earnings-per-share ratio
Companies Act
economic reality
financial engineering
share capital structure
en_US
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.
oai:journals.assaf.org.za:article/650
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/650
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2667-2702
The legislative framework regarding bullying in South African schools
Peer-reviewed Article
Laas, A
Boezaart, T
2014-11-14
url:https://perjournal.co.za/article/view/650
en_US
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.
oai:journals.assaf.org.za:article/652
2019-02-28T08:50:58Z
per:ART
driver
v2
https://perjournal.co.za/article/view/652
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2704-2744
Separation of powers in Ghana: The evolution of the political question doctrine
Peer-reviewed Article
Mhango, M
2014-11-14
url:https://perjournal.co.za/article/view/652
en_US
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.
oai:journals.assaf.org.za:article/682
2021-10-22T12:15:25Z
per:ART
driver
v2
https://perjournal.co.za/article/view/682
2021-10-22T12:15:25Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1255–1300
The Law Faculty of the NWU Potchefstroom Campus celebrates its half Centenary
Peer-reviewed Article
Gouws, HS
2015-08-25
url:https://perjournal.co.za/article/view/682
North-West University
faculty of law
history
en_US
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.
oai:journals.assaf.org.za:article/683
2021-09-20T13:11:06Z
per:ART
driver
v2
https://perjournal.co.za/article/view/683
2021-09-20T13:11:06Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1301–1330
The Development of International Law through the Unauthorised Conduct of International Institutions
Peer-reviewed Article
Van der Vyver, JD
2015-08-25
url:https://perjournal.co.za/article/view/683
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
en_US
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.
oai:journals.assaf.org.za:article/684
2019-04-15T07:59:52Z
per:ART
driver
v2
https://perjournal.co.za/article/view/684
2019-04-15T07:59:52Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1331–1365
Theoretical (Dis-) position and Strategic Leitmotivs in Constitutional Interpretation in South Africa
Peer-reviewed Article
Du Plessis, L
2015-08-25
url:https://perjournal.co.za/article/view/684
Constitution
Constitution – interpretation of
Constitutional Court – interpretive strategies
leitmotiv – Constitution – interpretation
memorial constitutionalism
monumental constitutionalism
transformative constitutionalism
en_US
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.
oai:journals.assaf.org.za:article/685
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/685
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1366–1404
Die Effek van 'n Voorlopige Sekwestrasiebevel – Word my Reg om 'n Lid van die Parlement te wees ingeperk?
Peer-reviewed Article
Stander, AL
2015-08-25
url:https://perjournal.co.za/article/view/685
Iinsolvency
provisional sequestration
final sequestration
effect of sequestration
competency of insolvent
en_US
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.
oai:journals.assaf.org.za:article/686
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/686
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1405 -1439
Enkele Opmerkings oor Bankrot Munisipaliteite
Peer-reviewed Article
Stander, AL
2015-08-25
url:https://perjournal.co.za/article/view/686
Insolvency
insolvent municipalities
sequestration
reorganisation
Chapter 9 reorganisations
en_US
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.
oai:journals.assaf.org.za:article/688
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/688
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1479–1505
The Effect of the Original Acquisition of Ownership of Immovable Property on Existing Limited Real Rights
Peer-reviewed Article
Pienaar, G
2015-08-25
url:https://perjournal.co.za/article/view/688
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
en_US
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.
oai:journals.assaf.org.za:article/690
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/690
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1506–1526
Reasons for Prosecutorial Decisions
Peer-reviewed Article
Du Toit, PG
Ferreira, GM
2015-08-25
url:https://perjournal.co.za/article/view/690
National Prosecuting Authority
prosecutorial decisions
reasons for prosecutorial decisions
legality principle
judicial review of prosecutorial decisions
en_US
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.
oai:journals.assaf.org.za:article/691
2019-04-15T08:08:32Z
per:ART
driver
v2
https://perjournal.co.za/article/view/691
2019-04-15T08:08:32Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1527–1544
Die Adversatiewe Stelsel van Bewyslewering en die Beste Belang van die Kind in Egskeidingsaangeleenthede: Enkele Gedagtes oor Collaborative Law ter Beslegting Van Ouerlike Geskille
Peer-reviewed Article
Robinson, JA
2015-08-25
url:https://perjournal.co.za/article/view/691
Best interest of the child
collaborative law
adversarial system
mediation
en_US
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.
oai:journals.assaf.org.za:article/692
2020-09-03T19:37:14Z
per:ART
driver
v2
https://perjournal.co.za/article/view/692
2020-09-03T19:37:14Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1545–1570
The South African Constitutional Court's Use of Foreign Precedent in Matters of Religion: Without Fear or Favour?
Peer-reviewed Article
Rautenbach, Christa
2015-08-25
url:https://perjournal.co.za/article/view/692
Transjudicialism
foreign precedent
comparative judicialism
stare decisis
foreign case law
comparative constitutionalism
Constitutional Court
en_US
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.
oai:journals.assaf.org.za:article/693
2021-09-20T13:12:14Z
per:ART
driver
v2
https://perjournal.co.za/article/view/693
2021-09-20T13:12:14Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1571–1601
Procurement Under the Uncitral Model Law: A Southern Africa Perspective
Peer-reviewed Article
De la Harpe, SP le R
2015-08-25
url:https://perjournal.co.za/article/view/693
Public procurement
regionalisation
UNCITRAL Model Law on Public Procurement
infrastructure development
SADC
COMESA
en_US
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.
oai:journals.assaf.org.za:article/694
2019-04-15T08:10:33Z
per:ART
driver
v2
https://perjournal.co.za/article/view/694
2019-04-15T08:10:33Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1636–1668
Anti-Money Laundering Regulations and the Effective use of Mobile Money in South Africa – Part 1
Peer-reviewed Article
Kersop, M
Du Toit, SF
2015-08-25
url:https://perjournal.co.za/article/view/694
Mobile money
financial inclusion
financial integrity
risk-based approach
en_US
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.
oai:journals.assaf.org.za:article/695
2019-04-15T08:12:09Z
per:ART
driver
v2
https://perjournal.co.za/article/view/695
2019-04-15T08:12:09Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1602–1635
Anti-Money Laundering Regulations and the Effective Use of Mobile Money in South Africa – Part 2
Peer-reviewed Article
Kersop, M
Du Toit, SF
2015-08-25
url:https://perjournal.co.za/article/view/695
Mobile money
financial inclusion
financial integrity
risk-based approach
en_US
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.
oai:journals.assaf.org.za:article/696
2021-09-20T13:17:59Z
per:ART
driver
v2
https://perjournal.co.za/article/view/696
2021-09-20T13:17:59Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1669–1690
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
Peer-reviewed Article
Robinson, JA
Prinsloo, Ronelle
2015-08-25
url:https://perjournal.co.za/article/view/696
Parental care
Children's Act 38 of 2005
constitutional damages
appropriate relief
en_US
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.
oai:journals.assaf.org.za:article/697
2019-04-15T08:13:55Z
per:ART
driver
v2
https://perjournal.co.za/article/view/697
2019-04-15T08:13:55Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1691–1724
Riglyne vir die Hersiening van Omgewingsverwante Wetgewing ter Verwesenliking van die Reg op Toegang tot Voldoende Voedsel
Peer-reviewed Article
Snyman, I
Gildenhuys, A
2015-08-25
url:https://perjournal.co.za/article/view/697
Environmental-related legislation
legislative review
natural agricultural resources
right to access to sufficient food
sectoral legislation
en_US
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.
oai:journals.assaf.org.za:article/698
2019-04-15T08:14:45Z
per:ART
driver
v2
https://perjournal.co.za/article/view/698
2019-04-15T08:14:45Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1725–1759
Valuation in the Constitutional Era
Peer-reviewed Article
Du Plessis, WJ
2015-08-25
url:https://perjournal.co.za/article/view/698
Property clause
expropriation
compensation
valuation
market value
en_US
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.
oai:journals.assaf.org.za:article/699
2019-04-15T08:25:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/699
2019-04-15T08:25:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1760–1795
Finding Property in New Places – Property in Cyber and Outer Space
Peer-reviewed Article
Erlank, W
2015-08-25
url:https://perjournal.co.za/article/view/699
Virtual property
property law
cyber law
objects of property
ownership
property in space
space law
en_US
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.
oai:journals.assaf.org.za:article/700
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/700
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1796–1810
Die Geldigheidsvereistes van 'n Trust opnuut Ondersoek: Khabola v Ralithabo [2011] ZAFSHC 62
Peer-reviewed Article
Vorster, A
Coetzee, JP
2015-08-25
url:https://perjournal.co.za/article/view/700
Trust
trust deed
valid trust
basic requirements
en_US
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.
oai:journals.assaf.org.za:article/701
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/701
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1811–1844
In Search of Alternatives or Enhancements to Collective Bargaining in South Africa: are Workplace Forums a Viable Option?
Peer-reviewed Article
Botha, MM
2015-08-25
url:https://perjournal.co.za/article/view/701
Collective bargaining
workplace forums
co-determination
trade unions
adversarialism
consultation
information
decision-making
joint decisionmaking
conditions of employment
distributive issues
non-distributive issues
en_US
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.
oai:journals.assaf.org.za:article/705
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/705
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1900–1929
Public Litigation and the Concept of "Deference" in Judicial Review
Peer-reviewed Article
Klaasen, A
2015-08-25
url:https://perjournal.co.za/article/view/705
Public litigation
private litigation
judicial activism
judicial review
judicial restraint
coherent theory of judicial review
culture of deference
culture of justification
en_US
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.
oai:journals.assaf.org.za:article/706
2019-04-15T08:21:50Z
per:ART
driver
v2
https://perjournal.co.za/article/view/706
2019-04-15T08:21:50Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1930–1952
“Corrective Rape" of Lesbians in the Era of Transformative Constitutionalism in South Africa
Peer-reviewed Article
Koraan, R
Geduld, A
2015-08-25
url:https://perjournal.co.za/article/view/706
Corrective rape
transformative constitutionalism
heteronormativity
en_US
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.
oai:journals.assaf.org.za:article/707
2019-04-15T08:22:41Z
per:ART
driver
v2
https://perjournal.co.za/article/view/707
2019-04-15T08:22:41Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1953–1977
Evaluering van Regstellende Aksie in Konteks van Moontlike Onbillike Diskriminasie teen Subgroepe binne die Aangewese Groep
Peer-reviewed Article
Stoffels, MC
2015-08-25
url:https://perjournal.co.za/article/view/707
Unfair discrimination
affirmative action measures
designated groups
suitably qualified
affirmative action candidates
en_US
The implementation of affirmative action measures can give rise to unfair discrimination. In cases where members of the “designated groups” compete with one another for the same position, there can be allegations of unfair discrimination. The question arises as to how the employer needs to act in order to avoid unfair discrimination in cases where more than one person from the designated group applies for the same position. The purpose of this article is to evaluate the impact of unfair discrimination on the designated group, specifically with regard to the subgroup “black people” as well as how the employer can avoid unfair discrimination in the implementation of the affirmative action measures aimed at advancing “black people” by selecting the most suitably qualified person from the sub group black people based on the national and regional demographics.
oai:journals.assaf.org.za:article/708
2019-04-15T08:23:24Z
per:ART
driver
v2
https://perjournal.co.za/article/view/708
2019-04-15T08:23:24Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1978–2010
A Few South African Cents' Worth on Bitcoin
Peer-reviewed Article
Nieman, A
2015-08-25
url:https://perjournal.co.za/article/view/708
Bitcoin
currency
virtual currency
cryptocurrency
en_US
This article is aimed at augmenting current awareness of virtual currencies ("VCs") in the South African legal community. To this end, it introduces the reader to VCs in general and decentralised convertible VCs ("DCVCs") in particular. Due to their design and interaction with the real economy and currency, DCVCs are on the radar of many financial regulators worldwide. As Bitcoin is considered the leading type of DCVC in terms of value and volume, its early beginnings in South Africa are probed. Although regulation should follow innovation, awareness of the VC ecosystem will not only warrant appropriate regulatory intervention when the time comes, but will also enable the growth and development opportunities associated with VCs. South Africa has not promulgated any legislation pertaining to VCs. The potential applicability of all current legislation and regulations relevant to VCs calls for in-depth research. This article aspires to serve as an appetiser to do so.
oai:journals.assaf.org.za:article/709
2019-02-28T08:52:46Z
per:ART
driver
v2
https://perjournal.co.za/article/view/709
2019-02-28T08:52:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 2011–2059
The Pursuit of Sustainable Development through Cultural Law and Governance Frameworks: A South African Perspective
Peer-reviewed Article
Owosuyi, IL
2015-08-25
url:https://perjournal.co.za/article/view/709
Governance
sustainable development
cultural law
cultural policies
en_US
The idea of including a cultural dimension in development policies has become the focus of international scholarly and policy debates. Analysing and conceptualising the role of culture in the sustainable development context was brought into focus by the World Commission on Culture and Development (WCCD), with the publication of the report Our Creative Diversity: Report of the World Commission on Culture and Development in 1995. The Report highlighted the cultural dimensions of a humancentered development paradigm and proposed placing culture at the center stage of development thinking. This argument was taken further at the International Conference on Cultural Policies for Development held in Stockholm in 1998, where it was proposed that cultural policies become key components of development strategies. This article will examine the infiltration of culture into the contemporary understanding of sustainable development and the relevance of international law developments to domestic (South African) law and policy with regards to sustainable development and culture.
oai:journals.assaf.org.za:article/723
2019-04-25T10:42:57Z
per:ART
driver
v2
https://perjournal.co.za/article/view/723
2019-04-25T10:42:57Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-25
A Spring without Water: The Conundrum of Anti-Dumping Duties in South African Law
Peer-reviewed Article
Vinti, Clive; The University of the Free State
2017-05-17
url:https://perjournal.co.za/article/view/723
Dumping
imposition
provisional payments
publication
sunset review
anti-dumping duty
ratification
en_US
The Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), permits the imposition of anti-dumping duties for as long and to the extent necessary to counteract dumping which is causing injury subject to the proviso that they must be terminated after five years unless a sunset review has been initiated. Sunset review has the purpose of either permitting or terminating the continuation of an anti-dumping duty. This is significant because if the sunset review is not initiated prior to the expiry of the five year period, the anti-dumping duties will be terminated.
Therefore, this places a greater emphasis on the determination of the precise date of commencement of the anti-dumping duties. This is because an incorrect determination of the date of imposition of the anti-dumping duty has obvious financial implications for the interested parties. To this end, the Supreme Court of Appeal in South Africa has delivered two salient judgments in this regard: firstly, in Progress Office Machines CC v SARS, and then more recently, in Association of Meat Importers v ITAC. These two cases hinge on the interpretation of the date of 'imposition' of definitive anti-dumping duties particularly where provisional measures are involved, which invariably determines the date of expiry of the duties as espoused by Regulations 38 and 53 of the International Trade Administration Commission Anti-Dumping Regulations.
This paper contends that these two judgments are conflicting and riddled with inconsistencies. Secondly, the paper contends that the SCA has in the recent AMIE case, virtually rewritten its earlier judgment of Progress Office Machines. Lastly, the paper shows that the approach of South African courts on whether the Anti-Dumping Agreement is binding on South African law, is fraught with uncertainty and an ambivalence .The case analysis also reflects on the impact of the newly minted but yet to be implemented, Customs Duty Act, with a view to assess the impact of the new legislation on the issues currently plaguing the anti-dumping regime of South Africa.
oai:journals.assaf.org.za:article/724
2019-04-24T07:10:16Z
per:ART
driver
v2
https://perjournal.co.za/article/view/724
2019-04-24T07:10:16Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-30
Recent Developments in Sexual Offences against Children – A Constitutional Perspective
Peer-reviewed Article
Stevens, Philip; University of Pretoria
2017-05-17
url:https://perjournal.co.za/article/view/724
Sexual offences
children
en_US
This contribution deals with recent developments in sexual offences against children with reference to sections in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The latter is addressed against the backdrop of the Constitutional Court judgments in Teddybear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (1) SACR) 327 (CC) and J v National Director of Public Prosecutions 2014 (2) SACR (CC). These two judgments had a profound impact in terms of shaping newly formulated sexual offences in line with constitutional principles ultimately culminating in the enactment and commencement of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 5 of 2015. The approach by the Constitutional Court in both of the abovementioned judgments is discussed and assessed. An analysis is provided of the Amendment Act with specific reference to its impact on sexual offences against children.
oai:journals.assaf.org.za:article/727
2019-04-25T10:23:04Z
per:ART
driver
v2
https://perjournal.co.za/article/view/727
2019-04-25T10:23:04Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-34
The Legal Status of Evidence obtained through Human Rights Violations in Uganda
Peer-reviewed Article
Nanima, Robert D; UNIVERSITY OF THE WESTERN CAPE
2017-05-17
url:https://perjournal.co.za/article/view/727
Admissibility
Evidence
Human rights violations
Uganda
en_US
The Constitution of the Republic of Uganda, 1995 (Constitution of 1995) is silent on the issue of dealing with evidence obtained through human rights violations. This silence dates to the Constitutions 1962, 1966 and 1967. It is only the Prohibition and Prevention of Torture Act of 2012 that renders evidence obtained through torture inadmissible. This means that evidence obtained through human rights violations, other than torture is not covered by any other legislation in Uganda. The position is different in other common law jurisdictions such as South Africa, Kenya and Zimbabwe, which have constitutional provisions on how to deal with evidence obtained through human rights violations. Decisions handed down by the Courts are inconsistent in dealing with this kind of evidence. This comparative study coupled with Uganda’s international human rights obligations delves into this lacuna in the law and gives proposals for reform.
oai:journals.assaf.org.za:article/730
2019-04-25T09:35:02Z
per:ART
driver
v2
https://perjournal.co.za/article/view/730
2019-04-25T09:35:02Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-36
An Evaluation of the Self-Regulation of Promotional Competitions in South Africa
Peer-reviewed Article
Strachan, Daniel; University of Pretoria
2017-05-17
url:https://perjournal.co.za/article/view/730
promotional competitions
prize competitions
prize promotions
consumer protection
industry codes
self-regulation
advertising
sales promotion.
en_US
Promotional competitions are competitions in which prizes are awarded by lot or chance in order to promote goods or services. In order to protect participants and consumers against abuse, these competitions are usually regulated by gambling or consumer protection legislation. However, the relevant legislation is often complemented by self-regulation, which is the focus of this contribution.
Self-regulation entails the regulation or governing of an industry by the role players in that industry. This article commences by explaining the relevant terminology and exploring self-regulation in general, including the various forms of self-regulation and the binding force thereof. The nature of self-regulation is discussed together with the advantages and challenges associated with this form of regulation. This is followed by some examples of self-regulation on a global level in order to provide a comparative perspective on the topic. The provisions of the International Chamber of Commerce’s Consolidated Code of Advertising and Marketing Communications Practice are summarised and the European Advertising Standards Alliance’s role in self-regulation is considered. Attention is also given to the relevant industry codes in the United Kingdom in view of the comprehensive way in which promotional competitions are covered by the self-regulation in that country.
The main part of the article centres on the self-regulatory position in South Africa. The brief overview of the role and function of the Advertising Standards Authority of South Africa (ASASA) is provided. The provisions of the ASASA’s Code of Advertising Practice are then examined and some ASASA rulings are discussed in order to illustrate the relevant principles. Thereafter, the focus shifts to the Code of Conduct of the Wireless Application Service Providers’ Association, which contains detailed provisions relating to promotional competitions. Some relevant rulings are also considered. In conclusion, comments are made regarding the current state of the self-regulation of promotional competitions in South Africa.
oai:journals.assaf.org.za:article/732
2019-04-23T14:11:39Z
per:ART
driver
v2
https://perjournal.co.za/article/view/732
2019-04-23T14:11:39Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-26
Constitutional Values, Therapeutic Jurisprudence and Legal Education in South Africa: Shaping our Legal Order
Peer-reviewed Article
Fourie, Elmarie; University of Johannesburg
2017-05-17
url:https://perjournal.co.za/article/view/732
Therapeutic
jurisprudence
legal
education
transformative constitutionalism
preventative
lawyering
constitutional
values
professional legal identity.
en_US
Law schools have a responsibility to remind law students that by studying law they have the power to transform thoughts, policies and lives, and that practising law is not just about financial rewards, but that its greatest reward is contributing to the betterment of society and ultimately to social change. The values and philosophies that law lecturers instil in law students can contribute to the legal order of the future; a legal order that supports a transformative South Africa. A need exists to bring legal education closer to the values enshrined in our Constitution. In addition to an extensive knowledge of legal principles, critical thinking and research skills, law students should critically engage with our constitutional values. The question remains: How do we transform legal education in South Africa? How do we change the way we teach law students? The introduction of concepts such as therapeutic jurisprudence enhanced by our constitutional values will ensure that we deliver graduates that display a commitment to our constitutional vales and an ability to engage critically with these values. It is important to establish a professional legal identity amongst students from their first year as this will assist in the development of a well-rounded graduate that can contribute to the legal order of the future. Letter writing and drafting skills, the value of plain language, moot court activities, alternative dispute resolution and clinical legal education provide opportunities to integrate valuable therapeutic jurisprudence principles into the curriculum and can allow students to critically engage with our constitutional values. By embodying these values they can improve the legal system, shape our legal order and promote progress toward an equal and free democratic society as envisaged by the Constitution.
oai:journals.assaf.org.za:article/734
2019-04-25T10:10:52Z
per:ART
driver
v2
https://perjournal.co.za/article/view/734
2019-04-25T10:10:52Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-27
The Admission and Enrolment of Foreign Legal Practitioners in South Africa under the Legal Practice Act: International Trade Law and Constitutional Perspectives
Peer-reviewed Article
Hagenmeier, Cornelius; University of Venda
Shumba, Tapiwa; University of Fort Hare
Mireku, Obeng; University of Fort Hare
2017-05-17
url:https://perjournal.co.za/article/view/734
Affirmative action
Minority group
Multi layered disadvantage
Situation sensitive
Designated groups
Equality
Employment equity
en_US
Globalisation requires ever closer co-operation between legal professionals hailing from different national jurisdictions. This interactive global environment has fostered growing international training and mobility among legal practitioners and the internationalisation of legal education. Increasing numbers of law students get trained in other countries as part of their undergraduate degrees or even come to foreign shores to obtain law degrees. Many students hailing from other African countries study towardsLLBdegrees at South African universities. Major commercial law firms ensure that they can offer in-house expertise on major foreign legal systems and co-operate with partner firms in other parts of the globe.
The General Agreement on Trade in Services (GATS), to which South Africa is a party, is a multilateral agreement focusing on the liberalisation of trade in services amongst member countries. Services under the GATS system include legal services. The commitments made by South Africa under this agreement require that South Africa allows foreign legal practitioners to establish a commercial presence or be transferred to South Africa. The Bill of Rights entrenched in Chapter 2 of the South African Constitution guarantees fundamental rights including the right to equality and freedom of trade, occupation and profession. With the coming into force of the new Legal Practice Act 28 of 2014, which provides a legislative framework for regulating the affairs of legal practitioners, including their admission and enrolment, it is necessary to assess the extent to which the Act complies with the GATS rules and the South African Constitution.
This paper examines the new Legal Practice Act 28 of 2014, and examines whether the Act addresses the conflicts that have always existed between the regulation of the legal profession and the admission of legal practitioners in South Africa with South Africa's commitments under the GATS system. Using the doctrinal legal method, it analyses and evaluates the rules governing the admission of foreign attorneys in South Africa from two perspectives. First, it considers them in the light of the international law obligations of the country and second it evaluates whether or not they comply with the South African Constitution, and more specifically with the Bill of Rights entrenched in the South African Constitution. While the new legislation may assist in ensuring the compliance of South Africa with the relevant GATS rules, it will depend on the regulations which still have to be promulgated to what extent the new legal framework will achieve the full compliance of South Africa with all relevant GATS rules.
The paper concludes with recommendations for the reform of the Legal Practice Act. It argues that while the requirement to be a South African permanent resident in order to qualify for admission as an attorney may be justifiable in terms of GATS and in terms of South African constitutional law, it is not in South Africa's best interest to retain it. Consequently, the paper calls for the repeal of the permanent residence requirement for admission as an attorney in the county.
oai:journals.assaf.org.za:article/735
2019-04-18T09:13:52Z
per:ART
driver
v2
https://perjournal.co.za/article/view/735
2019-04-18T09:13:52Z
Faculty of Law, North-West University, South Africa
Vol. 20 (2017); 1-43
Regulating Against Business "Fronting" to Advance Black Economic Empowerment in Zimbabwe: Lessons from South Africa
Peer-reviewed Article
Warikandwa, Tapiwa V; University Fort Hare
Osode, Patrick C; University Fort Hare
2017-03-16
url:https://perjournal.co.za/article/view/735
Black economic empowerment
indigenisation
business fronting
Zimbabwe
South Africa
distributive justice
en_US
This article examines Zimbabwe’s indigenisation legislation, points out some of its inadequacies and draws lessons from South Africa’s experiences in implementing its own indigenisation legislation. Both countries have encountered challenges relating to an upsurge in unethical business conduct aimed at defeating the objectives of their black economic empowerment programmes, policies and legislation. This practice is called business fronting. However, while South Africa has succeeded in enacting a credible piece of legislation aimed at addressing this issue, Zimbabwe has yet to do so. The article points out that the failure to regulate against business fronting poses the most significant threat to the attainment of the laudable aims and objectives of the indigenisation programme and related legislation. In order to avoid becoming a regulatory regime that is notorious for not only being functionally ineffective but also for tacitly permitting racketeering in reality, the article argues for the adoption of anti-fronting legislation in Zimbabwe using the South African legislation as a model.
oai:journals.assaf.org.za:article/739
2019-04-24T06:23:43Z
per:ART
driver
v2
https://perjournal.co.za/article/view/739
2019-04-24T06:23:43Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-43
Remedial Principles and Meaningful Engagement in Education Rights Disputes
Peer-reviewed Article
Liebenberg, Sandra; University of Stellenbosch
2017-05-17
url:https://perjournal.co.za/article/view/739
Meaningful engagement
constitutional education rights
school governance
public law remedial principles
participatory remedies
supervisory orders
Susan Sturm.
en_US
This article evaluates the meaningful engagement doctrine in the education rights jurisprudence of the Constitutional Court in the light of a set of normative principles developed by Susan Sturm for evaluating participatory public law remedies. It commences by identifying four principles for evaluating participatory remedies appropriate to South African constitutional law and jurisprudence. Thereafter the relevant jurisprudence is analysed and evaluated in the light of these principles. The article concludes by making proposals for the development of meaningful engagement as a participatory remedy in educational rights disputes. These proposals seek to ensure a better alignment between the meaningful engagement remedy and the four remedial principles identified.
oai:journals.assaf.org.za:article/742
2019-04-25T09:36:02Z
per:ART
driver
v2
https://perjournal.co.za/article/view/742
2019-04-25T09:36:02Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-29
Strengthening Locus Standi in Human Rights Litigation in Zimbabwe: An analysis of the Provisions in the New Zimbabwean Constitution
Peer-reviewed Article
Chiduza, Lovemore; University of Limpopo
Makiwane, Paterson Nkosemntu; Walter Sisulu University
2017-05-17
url:https://perjournal.co.za/article/view/742
Zimbabwe
locus standi
human rights litigation
en_US
Zimbabweans have been both victims of and witnesses to serious human rights violations over the years.Though there is wide agreement and speculation that the state and its agencies are the perpetrators of these atrocities, they have largely remained unprosecuted and unpunished.Such impunity is inter alia the result of ineffective law enforcement mechanismsand institutions as well as the lack of capacity and legal knowledge of victims to approach the courts and seek redress. These factors negatively affected the protection of human rights and access to justice in Zimbabwe.
Although the Lancaster House Constitution contained a Declaration of Rights, its enforcement mechanisms, particularly those relating to locus standi (legal standing), posed a great challenge to human rights litigation in Zimbabwe. This is so because the Lancaster House Constitution adopted the traditional common law approach to standing. Under this approach it was required that an individual must have a "personal, direct or substantial interest" in a matter in order to have standing. The Lancaster House Constitution failed to recognise the importance of broader rules of standing, which would accommodate public interest litigation, specifically for the purpose of protecting human rights. Contrary to this, the new Constitution of Zimbabwe (2013) broadens the rules of standing in order to enhance access to the courts. This paper analyses the new approach to standing under the new constitutional dispensation in Zimbabwe.
To this end, the discussion commences with an elucidation of the concept of locus standi and its link to access to justice. This is followed by an analysis of locus standi under the Lancaster House Constitution. Since the new approach in Zimbabwe is greatly informed by the South African approach to locus standi, a brief analysis of standing in South Africa is made. The paper concludes with a discussion of the approach to locus standi under the new constitution with a view to demonstrating how the new approach is likely to impact on the right of access to justice and human rights protection.
oai:journals.assaf.org.za:article/770
2019-04-18T10:23:31Z
per:ART
driver
v2
https://perjournal.co.za/article/view/770
2019-04-18T10:23:31Z
Faculty of Law, North-West University, South Africa
Vol. 20 (2017); 1-31
Prosecuting the Offence of Misappropriation of Public Funds: An Insight into Cameroon's Special Criminal Court
Peer-reviewed Article
Agbor, Avitus; SCHOOL OF UNDERGRADUATE STUDIES,
FACULTY OF LAW,
NORTH-WEST UNIVERSITY,
MAFIKENG CAMPUS
2017-05-17
url:https://perjournal.co.za/article/view/770
corruption
misappropriation of public funds
Special Criminal Court
embezzlement
political corruption.
en_US
The fight against the misappropriation of public funds for private gain perpetrated by individuals, especially public servants, enjoys different degrees of commitment by different countries. The enactment of laws and establishment of institutional mechanisms towards this end are partly a reflection of the attainment of such mission and can also be the measure by which such a commitment can be assessed. Rated as one of the most corrupt countries in Africa by the global anti-corruption watchdog, Transparency International, the Republic of Cameroon recently enacted a law that created a Special Criminal Court. This comes as one of the most robust and significant legislative developments in the fight against misappropriation of public funds as its mandate is to bring to justice persons who cause loss of at least 50.000.000 CFA Francs [equivalent to about USD 100.000] relating to misappropriation of public funds and other related offences provided for in the Cameroon Penal Code and International Conventions ratified by Cameroon.’ This paper examines the offence of misappropriation of public funds, and looks at aspects of the Special Criminal Court as provided by the Law that established it as well as supplementary legislation enacted to address specific issues related to the Special Criminal Court as well as the offence for which individuals are prosecuted. As a bold step in fighting and defeating the ‘invisible enemy amongst us’ (that is, corruption), this paper argues that with such an institutional mechanism that has docked numerous top-notch politicians and former cabinet members for trial, it becomes an example to emulate and confirms that corruption can be fought if, and only when, the political will to do so is present.
oai:journals.assaf.org.za:article/820
2021-09-20T13:18:55Z
per:ART
driver
v2
https://perjournal.co.za/article/view/820
2021-09-20T13:18:55Z
Faculty of Law, North-West University, South Africa
Vol. 20 (2017); 1-35
Children's Rights to Mother-Tongue Education in a Multilingual World: A Comparative Analysis between South Africa and Germany
Peer-reviewed Article
Stoop , Chrizell; University of South Africa (UNISA)
2017-05-11
url:https://perjournal.co.za/article/view/820
Mother tongue
mother-tongue education
bilingual education
MT-based MLE
language policy
international instruments
UN Convention on the Rights of the Child
Convention against Discrimination in Education
en_US
The importance of the mother tongue, and, more specifically, of mother-tongue education, is recognised globally. Use of the mother tongue is regarded as one of the most effective ways of acting and performing cognitively, socially and communally. The aim of this article is to encourage and promote the implementation and realisation of mother-tongue education through certain school/education models in order to achieve equality and liberation and to increase the incidence of high-performance education systems in a multilingual world. A comparative analysis of South Africa and Germany will also be undertaken with regard to language policies and the mother-tongue education situation in these countries' school systems. Several other aspects such as the choice of language as a fundamental right, the importance of international instruments, as well as some lessons to be learnt for both South Africa and Germany in respect of mother-tongue education, will be discussed. It will be concluded that, despite the existence of a multilingual world, the crucial importance of the use of the mother tongue and mother-tongue education should not be underestimated and/or ignored.
oai:journals.assaf.org.za:article/824
2019-04-25T10:11:51Z
per:ART
driver
v2
https://perjournal.co.za/article/view/824
2019-04-25T10:11:51Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-23
The Rights and Freedoms of Moroccan Women: has the 2004 reforms benefited Moroccan Women?
Peer-reviewed Article
Booley, Ashraf; University of the Western Cape
2017-05-17
url:https://perjournal.co.za/article/view/824
Women’s Rights
Islam
Marriage
Reform and Mudawana
en_US
Morocco has maintained its identity and adherence to the Islamic faith since before colonialism and after. As a result of such identity the Moroccan monarchy over the years developed the Code of Personal Status (referred to as the mudawana) which affected only the Muslim population. This type of family law was drawn mostly from Islamic doctrines with little or no participation of women. The mudawana has been criticised by many as being one-side and feminist groups have made numerous calls for a reformed mudawana that addressed the plight of women and to improve their status within the wider community. In 2004, the monarchy decided to reform the mudawana as a result of women’s groups pressuring the monarchy to do so. The 2004 reforms has the possibility of enhancing the rights of Moroccan women, for example, a wife is no longer legally obliged to obey her husband, contrary to a widely-held custom which regards obedience as an absolute duty of a Muslim wife, the minimum age for marriage for both parties eighteen years of age, including free and full consent. Polygyny has also been addressed. Although the 2004 version kept the concept of polygyny, there are severe restrictions to curtail this practice, for example, judicial authorisation is required as well as informing the current wife of the prospect. There are certain obstacles that seem to be hampering the full implementation of 2004 reforms which are discussed in this contribution.
oai:journals.assaf.org.za:article/827
2019-04-17T12:23:47Z
per:ART
driver
v2
https://perjournal.co.za/article/view/827
2019-04-17T12:23:47Z
Faculty of Law, North-West University, South Africa
Vol. 20 (2017); 1-19
The Exclusion of Liability for Emotional Harm to Passengers in the Warsaw and Montréal Convention: moving away from Floyd, Siddhu and Pienaar, the Stott Case?
Peer-reviewed Article
De Gama, Rafia; University of South Africa
2017-01-03
url:https://perjournal.co.za/article/view/827
Dignity
strict liability
limitation of liability
en_US
This contribution focuses on the transport of passengers on international routes and the legal regime set down by the Warsaw Convention of 1929 and reinforced by the Montréal Convention of 1999. These Conventions regulate commercial aviation by detailing a set of minimum standardised procedures for flight safety, such as standards for air navigation systems, amongst others, to ensure safe and efficient air travel.
The legal regime also regulates the possible claims that may be made against airlines for the death of or harm to passengers, as well as relating to damage to and loss of baggage. The regime not only limits claims temporally and by location, but it also excludes the application of national legal regimes. With regard to claims of harm to dignity the regime disallows such claims to be brought within the restrictions placed by the legal regimes or on any other basis.
The contribution does not address the full coverage of these Conventions, only the exclusion of mental / emotional injuries. The Convention excludes emotional harm from the definition of death and physical harm. However claimants have brought claims to undermine the main exclusion of claims with regard to compensation for emotional harm. This contribution explores the exclusion of claims in the Warsaw and Montréal Conventions and thereafter analyses two court decisions in common law countries where this exclusion of claims was challenged and the challenge failed.
oai:journals.assaf.org.za:article/1101
2019-04-24T06:33:01Z
per:ART
driver
v2
https://perjournal.co.za/article/view/1101
2019-04-24T06:33:01Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-22
Investigating the Reasons behind the Increase in Medical Negligence Claims
Peer-reviewed Article
Pienaar, Letitia; UNISA
2017-05-17
url:https://perjournal.co.za/article/view/1101
medical negligence
patient autonomy
increase in medical negligence claims
patient-centred legislation
patient
en_US
Medical negligence claims have increased significantly over the last number of years. The trend is still ongoing and concerns have been raised about the impact of this increase on the medical industry. Medical practitioners are increasingly practising defensive medicine in an attempt to limit the risk of medical negligence claims being instituted against them. Medical negligence claims are instituted for a number of reasons, such as lack of communication between doctor and patient. Birth-related claims are instituted most frequently.
This contribution investigates the possible reasons behind the increase in both the value and the number of medical negligence claims. The focus falls especially on the increase in the number of claims. The contribution considers a decline in the level of professionalism amongst medical practitioners as one reason behind the increase, followed by the possibility that lawyers may be responsible for the increase in claims. In addition, it is pointed out that patients are simply becoming more aware of their rights.
The contribution further focuses on patient-centred legislation and pronouncements by courts that bolster patient autonomy and place patients in an ever stronger position to enforce their rights. Relevant provisions of the Constitution, the National Health Act, the Consumer Protection Act and the Children's Act are singled out for discussion, followed by a brief discussion of case law in line with themes identified in the aforementioned legislation.
The contribution submits that the increase in medical negligence claims should not come as a surprise, considering the high regard that our courts had for patient autonomy even before the enactment of the 1996 Constitution. The Constitution and the above legislation now contain specific rights that patients, including child patients, can enforce. The best interests of the child principle embodied in both the Constitution and the Children's Act is very prominent in the medical context and impacts on the medical practitioner's responsibilities towards a child patient. The Constitutional Court relied on this principle in its recent judgment to the effect that claims for wrongful life (brought by a child with a disability), may possibly have a place in our law. If the claim for wrongful life is eventually confirmed, we will no doubt see a further increase in medical negligence claims.
Patient-centred legislation and pronouncements by our courts that constantly reiterate the importance of patient rights arguably create very fertile ground for medical negligence claims. These are, as the contribution concludes, merely contributing factors to the phenomenon under investigation.
oai:journals.assaf.org.za:article/1118
2019-02-28T08:53:01Z
per:ART
driver
v2
https://perjournal.co.za/article/view/1118
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2060-2078
A Dance or a Marriage? The Relationship between Education and the Law in South Africa Some Personal Observations from Two Vantage Points
Peer-reviewed Article
Beckmann, Johan; Research Fellow, EduR-HRight Research Unit, North-West University, Potchefstroom
2015-10-29
url:https://perjournal.co.za/article/view/1118
Education law
SAELA
CELP
imagined power
lack knowledge
failure to obey
imbalance of educators and jurists
marriage of convenience.
en_US
This article deals with the debate in education and law circles about the convergence of the two fields of knowledge in an area conveniently called education law. It recognises that there is no universal acknowledgement of the existence of such a discipline.
Although the article does not present a full scale analysis of the relationship between education and law, it does present some views emerging from the existence and functioning of two organisations in South Africa namely the South African Education Law Association (SAELA) and the Interuniversity Centre for Education Law and Policy (CELP). Both of the organisations aim to promote education law research and training. In light of the existing literature the relationship is likened to a marriage of convenience or a dance in which the quality of the relationship between the two fields varies.
The author examines and concurs with opinions that there are grounds to support the notion that a discrete field of inquiry named education law does exist in South Africa. However, the relationship still needs to be developed for the field to mature as an academic discipline. Among the problems that have to be addressed are the lack of interest in universities (especially law faculties at former English universities) in this field, the subsequent imbalance between educators and jurists active in the field and the failure of educational administrators to abide by the law even if they are aware of what the law requires. Added to this failure is a lack of knowledge among administrators of education law and the presence of a phenomenon termed the use of imagined power among them.
The article concludes that there are indications that the relationship between education and the law can lead to the development and promotion of a discrete field of law named education law.
oai:journals.assaf.org.za:article/1123
2019-02-28T08:53:01Z
per:ART
driver
v2
https://perjournal.co.za/article/view/1123
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2107-2139
Educator Sexual Misconduct: Exposing or Causing Learners to be Exposed to Child Pornography or Pornography
Peer-reviewed Article
Coetzee, Susan; Department of Educational Leadership and Management, University of South Africa
2015-10-29
url:https://perjournal.co.za/article/view/1123
child pornography
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Employment of Educators Act 76 of 1998
Films and Publications Act 65 of 1996
educator sexual misconduct
pornography.
en_US
The law recognises that non-contact sexual offences can cause harm and several offences were created to regulate non-contact sexual child abuse offences. Several of these offences deal with the exposure or causing exposure of children to child pornography or pornography. Sexual grooming of children and the “Exposure or display of or causing exposure or display of child pornography or pornography to children” are criminalised in sections 18(2) and 19 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. And offences in relation to exposing children to disturbing, harmful and age-inappropriate materials are criminalised in sections 24A(2) and (4) of the Films and Publications Act 65 of 1996. In this article the author considered the content of the offences of “Exposure or display of or causing exposure or display of child pornography or pornography to children” in relation to the other offences dealing with exposure of children to child pornography or pornography. Benchmarked against these criminal offences the author then conceptualised exposing learners, or causing the exposure of learners to child pornography or pornography as forms of educator misconduct. The seriousness that should be attached to these forms of misconduct was considered in light of the various criminal offences. The review of the criminal offences and the forms of educator misconduct brought the ineffectiveness of current forms of serious educator misconduct to the fore. There is no form of serious misconduct that covers the transgression of educators who expose learners to child pornography or pornography that can be classified as “XX”. In conclusion a suggestion is made with regard to how a new form of serious misconduct could be worded so as to cover this gap, eg An educator must be dismissed if he or she is found guilty of – (g) exposing a learner to or causing exposure of a learner to material classified as “Refused” or “XX” in terms of the Films and Publications Act 65 of 1996.
oai:journals.assaf.org.za:article/1126
2019-02-28T08:53:01Z
per:ART
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v2
https://perjournal.co.za/article/view/1126
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2140-2182
School Governing Body Election Deficiencies – Deliberative Democracy Knocking at the Door
Peer-reviewed Article
Smit, Marius; Associate-professor of Education Law, North-West University, Potchefstroom Campus, South Africa
2015-10-29
url:https://perjournal.co.za/article/view/1126
School Governing Body
elections
regulations
Education Law
deliberative democracy
participatory democracy
responsiveness
phenomenological study.
en_US
As forums, School Governing Bodies have the makings of a great and unique South African democratic tradition as they reflect local deliberations, participative decision-making by stakeholders in education. The main contention of this article is that the SGB election processes at many public schools in South Africa are deficient. Legal analysis reveals the extent of non-uniformity of SGB election regulations among the nine provinces, as well as unlawful regulatory provisions, the unfair and undemocratic administration of the election process and misconceptions about democracy are causal factors that result deficiencies in SGB elections. The qualitative evidence affirms that parents are concerned about the insufficient information about candidates before and during elections, thus preventing voters from making informed decisions. Undemocratic features in the election process results in the election of unsuitable or incompetent candidates which has a detrimental effect on the governance of public schools. It is therefore recommended that a new set of nationally uniform SGB election regulations, which allows for transparent deliberation between candidates and voters should be promulgated before the next SGB election in order to address these shortcomings.
oai:journals.assaf.org.za:article/1127
2019-02-28T08:53:01Z
per:ART
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v2
https://perjournal.co.za/article/view/1127
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2183-2217
Reconceptualising the Standard of Care in Sport: The Case of Youth Rugby in England and South Africa
Peer-reviewed Article
Greenfield, Steve; Deputy Head of Westminster Law School, University of Westminster
Karstens, AJ; Senior lecturer, Faculty of Education Sciences, North-West University, Potchefstroom
Osborn, Guy; Barrister Professor of Law, University of Westminster
Rossouw, JP; Edu-HRight Research Unit, Faculty of Education Sciences, North-West University, Potchefstroom
2015-10-29
url:https://perjournal.co.za/article/view/1127
Negligence
Delict
Standards of care
Sport
South Africa
England
Public Policy
Litigation
Youth Rugby
en_US
Sport is an important area of civil society in both South Africa and England, and this article is broadly concerned with the relationship between sport and personal injury. More specifically, the article compares how rugby is regulated by the tort of negligence in England and delict in South Africa respectively. Regarding liability, for sport there are very specific factors that need to be taken into account. The article is concerned with, firstly, the broader context of sport as an important social and cultural activity, and secondly the specific sporting context that includes the rules of the game as well as the playing culture, with a focus on rugby at junior level. Through a critical and comparative analysis of how the standards of care in sport have been developed in both jurisdictions, the aim of this article is to consider how sport specific elements can be incorporated into the traditional legal principles. This comparative analysis contextualises the various discussions in the light of the differences between the English tort of negligence and the South African law of delict. Our argument is that the context and specificity of rugby should be more explicitly taken into account when evaluating potential liability. To establish a standard of care for sport is complex, with many factors to be taken into account and balanced against one another. The law of negligence/delict therefore needs to be adaptable and flexible to resolve new situations where injuries have occurred. Even in established situations where liability has been previously determined, novel events do occur and knowledge develops that requires a reconsideration of the principles that govern liability. In junior rugby, the risk of very serious injuries is relatively small and the law needs to tread a cautious path through liability, ensuring it is a vehicle that promotes sport rather than creating barriers to its enjoyment and practice. A greater understanding of sport, informed by detailed research, can unearth new areas of potential liability that will need to be considered in the future.
oai:journals.assaf.org.za:article/1128
2021-09-20T12:26:24Z
per:ART
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v2
https://perjournal.co.za/article/view/1128
2021-09-20T12:26:24Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2218-2262
Cyberbullying: Should Schools choose between Safety and Privacy?
Peer-reviewed Article
Laubscher, Michael; Lecturer, Faculty of Law, North-West University, Potchefstroom Campus.
van Vollenhoven, Willie; Associate Professor: Academic Manager for the Faculty of Education Sciences: Unit for Open Distance Learning, North-West University, Potchefstroom Campus
2015-10-29
url:https://perjournal.co.za/article/view/1128
cyberbullying
privacy
freedom of expression
Bill C-13
safety
schools.
en_US
In this theoretical article, we explore the tangled messiness of the application of human rights versus the 21st-century monster called "cyberbullying" in schools and focus on some of the challenges schools face daily. The research will reveal that cyberbullying victims were almost twice as likely to attempt suicide as youth who had not experienced cyberbullying, which implies that this is a phenomenon schools ought not to take lightly. We argue that everyone has a right to the freedom of expression, including in cyberspace, and begin by exploring how legal principles evolved in an attempt to deal with the limitations placed on an individual's right to freedom of expression. As we are about to reveal, though, matters become even more complicated when this freedom of expression relates to cyberspace, a space where users might have an expectation of privacy and even enjoy a state of anonymity. Clearly, the right to privacy and the right to freedom of expression need to be balanced and respected should school authorities be called upon to identify and discipline a cyberbully. This balancing act is one that needs to be investigated and carefully expounded upon, and is an issue that has not yet been sufficiently addressed in South Africa. Seeing that countries such as the United States of America and Canada have attempted to deal with this issue, it would be prudent to discuss the strides these countries have made, the challenges they have faced, and the insights they have gained, in an attempt to alert South Africa to the complex issues cyberbullying could raise. Working from this premise, this article will focus on the right to privacy, specifically in relation to Bill C-13 recently passed in Canada and the resultant Canadian Supreme Court decision in the case R v Spencer, a case that shed further light on the issue of privacy in cyberspace. We conclude the discussion by highlighting several potential pitfalls legislation such as Bill C-13 could create, and ask that constitutionally sound legal remedies be developed without delay to assist South African school governing bodies in the arduous task of having to deal with cyberbullying, to ensure that they are not faced with the question as to whether their learners' safety or privacy should come first.
oai:journals.assaf.org.za:article/1129
2021-09-20T12:24:55Z
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v2
https://perjournal.co.za/article/view/1129
2021-09-20T12:24:55Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2263-2298
The Nexus between the Rights to Life and to a Basic Education in South Africa
Peer-reviewed Article
Serfontein, Erika; Associate-Professor in Law, North-West University (Vaal Triangle Campus)
2015-10-29
url:https://perjournal.co.za/article/view/1129
right to life
right to education
law in education
quality
participation
choices
human development
transformation
well-being
responsibility
en_US
This article aims at exploring the nexus between the fundamental rights to life and to a basic education within the ambit of the legal framework created by both the Constitution of the Republic of South Africa, 1996 and the South African Schools Act 84 of 1996. Attention is drawn to the role of the law to order the living world humans live in an thus creating an emancipated framework allowing individuals a moral and self-sufficient life.The overarching goal of the supreme Constitution is to improve the quality of life of all citizens and ultimately to free everyone’s potential. In order to reach this goal and allow everyone to live a dignified life that it is worth living, the importance of education is highlighted.
As important source of education law, the objectives of the Schools Act, namely to (a) provide education of a progressively high quality, (b) lay a strong foundation for the development of humans’ talents and capabilities, (c) advance democratic transformation, (d) combat discrimination and intolerance, (e) assist the eradication of poverty and the well-being of society, (f) uphold learner rights and (g) promote the acceptance of responsibility are discussed and their practical realisation scrutinised. This lead to the author to establish the nexus between the two fundamental rights and to delineate the prominence of the delivering of a progressively high quality of education is provided to all South Africans to enhance their quality of life.
By taking regard of the role of the law in the sphere of education, the duties placed on all educational role-players to take responsibility for the delivery of educational services and be accountable therefore, are highlighted. The value of education was in this regard stressed in order to enable humans to take responsibility for their own lives, the conditions under which they live, the choices they make and the changes they bring about to better their lives.
oai:journals.assaf.org.za:article/1130
2019-02-28T08:53:01Z
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v2
https://perjournal.co.za/article/view/1130
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2299-2327
The Right to Freedom of Expression: The Mother of our Democracy
Peer-reviewed Article
Van Vollenhoven, Willem Johannes; Associate Professor: Academic Manager for the Faculty of Education Sciences: Unit for Open Distance Learning, North-West University, Potchefstroom Campus
2015-10-29
url:https://perjournal.co.za/article/view/1130
Democracy
human rights
freedom of expression
transformative curriculum
teaching-learning approaches
student-teachers
en_US
This paper explores student-teachers' understanding of the right to freedom of expression in education. Analyses of case law and legal principles affirm that the right to freedom of expression is an essential prerequisite to protect and promote democracy. Based on qualitative research, the empirical evidence indicates that although student-teachers are aware of the fact that the right to freedom of expression is not absolute and may be limited, they have a superficial knowledge of the application of this right. Student-teachers have a sense of the importance of the right to freedom of expression in a democracy, but they have not yet internalised the mechanism or process of balancing the right in praxis. This does not bode well as the school system will fail to be a market place of ideas. In order to enable learners to reach their full potential as critical thinkers and autonomous citizens in a developing democracy, it is imperative that teachers should understand and master the application of the right to freedom of expression in schools.
oai:journals.assaf.org.za:article/1132
2019-02-28T08:53:01Z
per:ART
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v2
https://perjournal.co.za/article/view/1132
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2328-2364
The Role of Law in Prompting Parents to Participate Accountably with Education Partners
Peer-reviewed Article
De Waal, Elda; Associate-Professor in Education Law, OPTENTIA focus area, North-West University (Vaal Triangle Campus)
Serfontein, Erika; Associate-Professor in Law, North-West University (Vaal Triangle Campus)
2015-10-29
url:https://perjournal.co.za/article/view/1132
Education Law
parental responsibility
participation
accountability
learner discipline
partners in education
en_US
Bearing in mind the previous Gauteng Education MEC’s recent indication that “discipline starts at home”, our article focuses on what South African law has contributed during the past 20 years to prompt parents participate accountably with partners in public school education, and how case law has defined parent accountability in this regard. Examples of relevant legislation would be those which assign the ultimate responsibility for learner conduct to parents, and call for a harmonious relationship between parents and educators. In line with the South African Schools Act’s requiring that parents partner with the State, educators and learners in accepting responsibility for their children’s schooling, this article highlights the need for a shared vision of the way forward. The importance of having such a shared vision to bring these disparate stakeholders’ aspirations together around the common goal, namely to develop all learners’ talents and capabilities, is underscored. The authors argue that factors such as reciprocal blame and a lack of cooperation are among the problems that hamper the full realisation in practice of the legislative provisions pertaining to parental accountability. Our article identifies solutions to this challenge, such as parents’ setting upright examples by behaving in an accountable manner, and recommendations, such as empowering parents for their roles as partners in education.
oai:journals.assaf.org.za:article/1133
2019-02-28T08:53:01Z
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https://perjournal.co.za/article/view/1133
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2365-2403
Experiences and Challenges of Evidence Leaders ("Prosecutors") in Learner Disciplinary Hearings in Public Schools
Peer-reviewed Article
Smith, Anthony; M Ed PhD candidate, University of Pretoria
Beckmann, Johan; Research Fellow, Edu-HRight Research Unit, North-West University
Mampane, Sharon; Lecturer, University of Pretoria
2015-10-29
url:https://perjournal.co.za/article/view/1133
Disciplinary hearing
Evidence leader
Learner discipline
Semi-structured interviews
Qualitative research
Quasi-judicial duties
en_US
After the abolition of corporal punishment at schools, teachers have been faced with an increase in unacceptable learner behaviour and threatening situations in their classrooms. An urgent need arose to address learner discipline in innovative ways. Disciplinary hearings that deal with cases of serious misconduct represent a shift away from authoritarian control towards a corrective and restorative approach. This article presents views of educators that had acted as evidence leaders (“ELs”) at disciplinary hearings. Qualitative data was collected through semi-structured interviews in a district of the Gauteng Education Department. AtlasTi software was utilised to analyse the verbatim interview transcriptions. Educators that usually served as evidence leaders (“prosecutors”), but had not been trained in law, experienced problems in conducting quasi-judicial functions without proper support and training. ELs regularly experience animosity from parents and learners; are frustrated by the unwillingness and failure of the provincial education departments to act in accordance with an SGB recommendation. Disciplinary hearings are time-consuming and lawyers representing learners complicate rather than facilitate the process. These weaknesses jeopardise the efficacy and fairness of the process and may ultimately defeat the purpose of a disciplinary hearing.
oai:journals.assaf.org.za:article/1134
2019-02-28T08:53:01Z
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v2
https://perjournal.co.za/article/view/1134
2019-02-28T08:53:01Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 6 (2015): Special Edition; 2079-2106
Between Norms and Facts: The Constitutional Court’s Commitment to Pluralism in South Africa’s Radically Heterogeneous Public Schools
Peer-reviewed Article
Woolman, Stuart; Governance and Sustainable Development; Editor-in-Chief, Constitutional Law of South Africa; Editor-in-Chief, Constitutional Court Review
2015-10-29
url:https://perjournal.co.za/article/view/1134
Pluralism
Constitutional Democracy
Education
Constitutional Court
en_US
The recognition of pluralism constitutes a golden thread that runs through the Constitutional Court’s entire oeuvre of work. This ‘right to be different’ finds its initial footing in Gauteng Education Bill, Prince, and Bhe. Pluralism then inserts itself into our jurisprudence as a grundnorm. The Court affirms this status repeatedly through very different rights in such cases as Fourie, Pillay, Shilubana, Ermelo and Juma Musjid. Pluralism must be understood as a necessary condition for maintaining order in a radically riven heterogeneous society. It’s hardly surprising, then, that pluralism plays a similar role in our schools and our still nascent development of an inclusive education policy. Pluralism frames, and circumscribes, the manner in which individual schools may order their admissions policies, curriculum, discipline proceedings and other internal affairs. At the same time, it gives adequate effect to learners’ rights and the communal interests within which the school is situated. Pluralism doesn’t require us to like one another. Suspicion of members of other groups remains an inextricable part of humanity’s DNA. However, we do have to learn to live with one another. The problem of pluralism is not – as Habermas and Judt show – a uniquely South African conundrum. That said, it’s universality does not mean we can ignore it’s challenges. Our schools remain wonderful places to reshape the manner in which we engage others who appear foreign to us. This article concludes that until our schools take this reshaping qua pluralism seriously, the South African experiment in democracy will remain fragile indeed.
oai:journals.assaf.org.za:article/1136
2019-04-15T08:41:50Z
per:ART
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v2
https://perjournal.co.za/article/view/1136
2019-04-15T08:41:50Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 7 (2015); 2739-2776
A Critique of the Unemployment Insurance Amendment Bill, 2015
Peer-reviewed Article
Olivier, Marius; Extraordinary Professor, Faculty of Law, Northwest University (Potchefstroom), South Africa; Adjunct-Professor, Faculty of Law, University of Western Australia (UWA), Perth, Australia
Govindjee, Avinash; Professor of Law, Head of the Department of Public Law and Deputy Head of the Labour and Social Security Law Unit, Nelson Mandela Metropolitan University, South Africa and consulting attorney.
2015-12-27
url:https://perjournal.co.za/article/view/1136
dependants' benefits
employment promotion
employment reduction
employment reintegration
independent appeal mechanism
international standards
maternity benefits
regional standards
social security
unemployment benefits
unemployment insurance
Unem
en_US
The contribution critically reflects on the proposed amendments to the Unemployment Insurance Act Act 63 of 2001 (the UIA / the Act), introduced via the provisions of the Unemployment Insurance Amendment Bill of 2015 (B25-2015). Several shortcomings and deficiencies are addressed and improvements introduced by the proposed amending legislation, including the extension of coverage to a wider range of beneficiaries, the extension of the period of benefits (to a maximum of 365 days), the increase of the rate of maternity benefits of a (female) contributor's earnings, the adjustment of the accrual rate of a contributor's duration of benefits from 1 day for every 6 days of employment to 1 day for every 5 days of employment, and some attempt to provide for employment retention and the re-entry of unemployed contributors into the labour market.
And yet, despite these important contributions to the development of unemployment insurance in South Africa, several matters appearing from the Bill point towards inconsistent, inadequate and inappropriate treatment of core elements of the unemployment insurance system. Recommendations have been made to address these matters, which among others relate to:
The insufficient alignment of the UIA with ILO, UN and SADC standards in key areas of concern;
Unclear or absent provisions in relation to the coverage and/or application of the UIA in relation to public servants, migrant workers, and the self- and informally employed;
Inadequate provision for employment promotion, the prevention, combating and reduction of unemployment, and reintegration into employment;
Inappropriate provisions relating to benefit rates and periods, among others concerning the Minister's power to set/amend the Income Replacement Rate and to vary the benefit period by regulation;
Inconsistent and discriminatory provisions requiring a 13-week qualifying period for accessing maternity benefits;
Inappropriate provisions regarding dependants' benefits, including the strengthening of the existing claims hierarchy in favour of spouses and life partners at the expense of children;
The absence of an independent appeal institution; and
Poorly formulated provisions, with evident discord between the provisions of the Bill and the Memorandum settings out its objectives.
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