2024-03-29T00:30:59Z
https://perjournal.co.za/oai
oai:journals.assaf.org.za:article/22
2019-04-15T06:56:13Z
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v2
https://perjournal.co.za/article/view/22
2019-04-15T06:56:13Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 3238-3258
Legal Aspects with Regard to Mentally Ill Offenders in South Africa
Peer reviewed article
Swanepoel, Magdaleen; University of South Africa
2015-02-21
url:https://perjournal.co.za/article/view/22
Mental illness
Mentally ill offenders
Forensic psychiatry
Defence with regard to mental illness
Criminal Procedure Act
Mental Health Care Act
en_US
The purpose of this note is to discuss legal aspects with regard to mentally ill offenders with specific reference to the defence raised as a result of mental illness. In order to fully understand this defence it is important to provide a clinical background on what forensic psychiatry is. It is also necessary to define certain clinical concepts such as the concept of mental illness, and the criteria for the classification of mental illnesses. This then leads to a discussion of the defence of mental illness. A conclusion is drawn at the end, with a summary of the findings.
oai:journals.assaf.org.za:article/23
2019-04-15T06:58:43Z
per:Note
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v2
https://perjournal.co.za/article/view/23
2019-04-15T06:58:43Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 1 (2015); 3260-3298
Huidige Regsontwikkeling ten aansien van Uitwinbaarverklaring van ʼn Verband oor ʼn Onroerende Saak
Peer reviewed article
Fuchs, Michelle M. M.; University of South Africa
2015-02-21
url:https://perjournal.co.za/article/view/23
Artikel 129(1)(a)-kennisgewing
Kubyana-uitspraak
Oproepingsproses
Sebola-uitspraak
Uitwinbaarverklaring
Voorverhoorprosedur
en_US
Wanneer . verbandskuldeiser . verbandskuldenaar se onroerende saak weens wanprestasie uitwinbaar wil laat verklaar, is hy aan streng formaliteite onderworpe ter beskerming van die verbandskuldeiser en verbandskuldenaar wat saaklike sekerheidsregte oor . onroerende saak het. Daar is verskillende stadiums waaraan die verbandskuldeiser moet voldoen voordat hy 'n verband oproep ten einde eksekusie teen die sekerheidsobjek te verkry. Die oproepingsproses kan in vier stadiums verdeel word: eerstens, die voorverhoorprosedure; tweedens, die bepaling van die geskikte hof . jurisdiksie; derdens, die oproeping van 'n verband in die hof, hofprosedure; en, vierdens, beslaglegging en die eksekusieverkoping (eksekusie). Hierdie stadiums het onlangs verskeie veranderings ondergaan wat hoofsaaklik deur die Grondwet van die Republiek van Suid-Afrika, 1996 (die Grondwet) en ander verbruikers-beskermingsmaatreels soos die Nasionale Kredietwet 34 van 2005 teweeggebring is. Volledigheidshalwe bespreek ek onlangse regsontwikkeling met verwysing na nuwe regspraak en wetgewing ten aansien van die eerste drie stadiums van die oproepingsproses van 'n verband op 'n onroerende saak. Daar word besondere klem gele op ontwikkeling ten aansien van die hofprosedure (litigasieprosedure) by die uitwinbaarverklaring van. verband, wat die derde stadium in die oproepingsproses is. Beslaglegging en die daaropvolgende eksekusieverkoping kom egter nie in hierdie artikel aan bod nie.
oai:journals.assaf.org.za:article/577
2019-04-25T12:13:20Z
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v2
https://perjournal.co.za/article/view/577
2019-04-25T12:13:20Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-24
Section 27 of the Insolvency Act 24 of 1936 as a Violation of the Equality Clause of the Constitution of South Africa: A Critical Analysis
Peer reviewed article
Mabe, Zingaphi; University of South Africa, Department of Mercantile Law
2017-05-17
url:https://perjournal.co.za/article/view/577
Insolvency
sequestration
dispositions
antenuptial contract
right to equality
discrimination
marital status
sexual orientation
birth
civil union
civil marriages
customary marriages
en_US
The Constitution of the Republic of South Africa, 1996, is regarded as one of the most progressive constitutions in the world. As the supreme law in South Africa, it applies to all law and conduct. All South African laws must be consistent with the Constitution. Where there is an alleged violation of constitutional provisions, that law or conduct must be evaluated to establish whether or not it is consistent with the values of an open and democratic society based on fundamental human rights such as human dignity and the right to equality.
The Insolvency Act and section 27 in particular which is the focus of this paper must be consistent with the Constitution. Section 27(1) provides:
"No immediate benefit under a duly registered antenuptial contract given in good faith by a man to his wife or any child to be born of the marriage shall be set aside as a disposition without value, unless that man's estate was sequestrated within two years of the registration of that antenuptial contract."
This section protects benefits arising from an antenuptial contract and given by a man to his wife or to a child born of their marriage, from being set aside as dispositions without value during sequestration proceedings. The same protection is not afforded however, to benefits given by the wife under an antenuptial contract. This also excludes benefits given by those in a same sex marriage, and limits the benefits available to children born of that form of marriage.
As the right to equality in section 9 of the Constitution seeks to provide equal benefits before the law to persons in the same or similar positions by prohibiting unfair discrimination, the limitations in section 27 render it vulnerable to constitutional review.
As the Insolvency Act has not been amended as a whole to accommodate the equality provisions in the Constitution, in its current form, section 27 seems to violate section 9(3) of the Constitution on the grounds of sexual orientation, marital status and birth.
However, certain proposals have been made in the report by the South African Law Reform Commission on the Review of the Law of Insolvency to develop section 27 to comply with the Constitution. Further developments have been proposed by the Department of Justice and Constitutional Developments in its presentations to the Labour Market Chamber in 2003 and 2006.
This paper examines section 27 of the Insolvency Act as it currently reads, within the context of the right to equality in section 9 of the Constitution. Current developments in respect of section 27 will be considered to illustrate progress made in reforming the section and whether the reform measures proposed will protect all those affected by the discrimination arising from section 27.
The discussion opens with a consideration of the current dispensation and the question whether section 27 violates section 9(3) of the Constitution. Current developments will then be discussed in the light of the current proposals.
oai:journals.assaf.org.za:article/589
2019-02-28T08:52:03Z
per:Note
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v2
https://perjournal.co.za/article/view/589
2019-02-28T08:52:03Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 2 (2015); 429-448
S v Litako 2014 SACR 431 (SCA): A Clarification on Extra Curial Statements and Hearsay
Peer reviewed article
Lutchman, S
2015-03-31
url:https://perjournal.co.za/article/view/589
Confessions
informal admissions
hearsay
statutory interpretation
section 39(2) of the Constitution
en_US
On 16 April 2014, the Supreme Court of Appeal handed down judgment in the matter of S v Litako 2014 2 SACR 431 (SCA) ("Litako"). The judgment reconsiders the landmark decision of the same court, S v Ndhlovu 2002 2 SACR 325 (SCA) ("Ndhlovu") in which the court held that an informal admission made by one accused could be admitted against a co-accused even if the accused in court denies making the statement and the statement itself is therefore considered to be hearsay. The court in Ndhlovu applied section 3 of the Law of Evidence Amendment Act 45 of 1988 and found that the hearsay extra curial admission could be admitted in the interests of justice. In Litako the court found that section 3 did not overrule an existing common law rule, which is that the extra curial statement of an accused (whether an informal admission or a confession) cannot be tendered against a co-accused. This is because section 3 does not expressly overrule this common law rule. Rather, the provision itself requests that its application be subject to the common law. The judgment is important for various reasons. Firstly, it is generally in keeping with the existing rule on the cautionary treatment of accomplice evidence. Secondly, the judgment highlights the current confusion in the relationship between statute and common law with regards to informal admissions and confessions. Thirdly, the court employs methods of statutory interpretation to re-examine the principle from Ndhlovu and finds that the court in that case did not apply its mind correctly in disregarding the common law rule. The court undertook a teleological approach to interpretation by infusing the meaning of the words with the spirit, purport and objects of the Bill of Rights and found that the statute had not overruled the common law rule.
oai:journals.assaf.org.za:article/600
2019-04-15T07:17:14Z
per:Note
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v2
https://perjournal.co.za/article/view/600
2019-04-15T07:17:14Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 3 (2015); 734-754
Questioning the use of the Mandament van Spolie in Ngqukumba v Minister of Safety and Security 2014 5 SA 112 (CC)
Peer reviewed article
Boggenpoel, ZT
2015-04-12
url:https://perjournal.co.za/article/view/600
Property
remedies
constitutional development
en_US
This cursory note reflects on the outcome of the Constitutional Court judgment of Ngqukumba v Minister of Safety and Security. The decision presented the Court with the opportunity to consider what happens to existing common law remedies in light of legislation that has been enacted to regulate a specific area of the law. The Constitutional Court held that the Traffic Act did not place an absolute prohibition on the possession of tampered vehicles and therefore the Court granted the spoliation remedy. The Court’s conclusion that the mandament van spolie is in principle available in these instances, creates the impression that the common law remedy would be appropriate even though the Criminal Procedure Act (CPA) contains a remedy to claim the property back. This note argues that such a conclusion is problematic. If the CPA has a remedy to restore possession, that option should first be exhausted. In this regard, it is necessary to regulate the choice of remedy if the common law and the legislation provide a remedy to vindicate the violations of rights. Furthermore, in instances where legislation has been enacted to regulate a specific area of the law (or to give effect to a constitutional provision) the mandament van spolie should in principle not be available. Finally, this note concludes that in instances where the Traffic Act prohibits possession of certain vehicles, it should not be possible to use the mandament van spolie to by-pass the legislation.
oai:journals.assaf.org.za:article/601
2019-04-15T07:17:46Z
per:Note
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v2
https://perjournal.co.za/article/view/601
2019-04-15T07:17:46Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 3 (2015); 755-773
A Critical Appraisal of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC)
Peer reviewed article
Kruger, P
2015-04-12
url:https://perjournal.co.za/article/view/601
Disability
Western Cape Forum for Intellectual Disability v Government of The Republic of South Africa
substantive equality
Education White Paper 6
Special Needs Education
White Paper 6
Right to Education
Integrated National Disability Strategy
en_US
The 2011 the Western Cape Forum for Intellectual Disability v Government of The Republic of South Africa case flagged a lot of issues faced by persons with disabilities relating to access to education in South Africa. The case tackled certain perceptions about the ineducability of persons with profound and severe disability and the remaining charity-oriented perception by the South African Department of Basic Education. While the court made several important points in advancing universal access to education, the author argues that certain holes in the judgment hinders the existence of judicial finding truly infused with concerns of substantive equality. An example of this short-coming is the court's consideration of reasonableness when the right to basic education is an immediately realisable right. The author also argues that the South African developments in education policy for persons with disability, while positive, is insufficient to truly give effect to substantive equality – the claim to equality being made in the new constitutional dispensation. There is still an attitude that is too permissive of separating students based on abilism. The social model of thinking about requires a complete transformation of the education system that would not require a classification of learners by abilities but have a different constitution so as to accommodate all students and not unduly enable one group over another. The author considers the approaches from Canada and India to explore its responses to education for students with varying levels of ability. Canada's similar conception of equality and India's influence on South African constitutionalism and shared experience with massive equality gaps make these jurisdictions instructive.
oai:journals.assaf.org.za:article/660
2019-04-04T13:29:57Z
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v2
https://perjournal.co.za/article/view/660
2019-04-04T13:29:57Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2746-2777
Property in insolvent estates – Edkins V registrar of deeds, Fourie V Edkins, and Motala V Moller
Peer reviewed article
Evans, RG
Steyn, L
2014-11-14
url:https://perjournal.co.za/article/view/660
Ownership of assets of insolvent estate
solvent spouse
section 21 Insolvency Act 24 of 1936
section 25 Insolvency Act 24 of 1936
en_US
The question of the ownership of property which vests (by virtue of sections 20(1) and 21(1) respectively of the Insolvency Act 24 of 1936) in the Master and, upon appointment, in the trustee of the insolvent estate, has been the source of academic debate and conflicting court judgments over a lengthy period. It was thought that the question had been finally settled by the (then) Appellate Division in De Villiers v Delta Cables (Pty) Ltd 1992 1 SA 9 (A), which concerned property belonging to the solvent spouse (as defined in section 21(13)), where it was held that ownership passes to the Master and subsequently the trustee. This was accepted by the Constitutional Court for the purposes of its judgment in Harksen v Lane 1998 1 SA 300 (CC). However, recent judgments, in Edkins v Registrar of Deeds, Johannesburg 2012 6 SA 278 (GSJ) and, on appeal, Fourie v Edkins 2013 6 SA 576 (SCA), have seemingly again opened up the question for debate, particularly in view of the fact that the Supreme Court of Appeal in Fourie v Edkins ignored its own precedent on this issue. These two judgments concerned property registered in the name of the insolvent. In a third recent judgment, in Motala v Moller (GSJ) unreported case number 32654/11 (GSJ) of 11 September 2013 (copy on file with authors) concerning property which had belonged to the solvent spouse at the time of the sequestration of the estate of her husband, the court regarded section 25(4) of the Insolvency Act as countering the precedent established by De Villiers v Delta Cables. In this article, each of these three judgments is analysed and criticised.
oai:journals.assaf.org.za:article/661
2019-04-04T13:32:43Z
per:Note
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v2
https://perjournal.co.za/article/view/661
2019-04-04T13:32:43Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2779-2803
Protecting the vulnerable? Assessing the constitutionality of the national register for sex offenders in respect of juvenile sex offenders – S v IJ 2013 2 SACR 599 (WCC) and J v National director of public prosecutions 2014 ZACC 13
Peer reviewed article
Stevens, P
2014-11-14
url:https://perjournal.co.za/article/view/661
Sexual offences register
sexual offences
en_US
This contribution deals with the recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The constitutionality of having juvenile sex offenders' names entered into the National Register of Sex Offenders is scrutinised by the High Court as well as ultimately by the Constitutional Court. A critical analysis specifically of section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act is embarked upon with specific reference to the lack of discretion afforded to courts in deciding whether the particular offender's details should be entered or not. The judgment delivered by the Constitutional Court is elucidated, where these provisions were declared unconstitutional in respect of child sex offenders. The decision under discussion is of particular relevance as the court was required to assess the constitutionality of the provisions relating to the Register with specific reference to juvenile sex offenders. The Constitutional Court specifically emphasised the need for an individuated discretion in respect of juvenile sex offenders catering specifically for the needs of juvenile sex offenders. The difference between adult sex offenders and juvenile sex offenders is also emphasised. The approaches followed by both the High Court and the Constitutional Court are provided and discussed, conclusions are reached and recommendations are made. It is suggested that in respect of juvenile sex offenders, a more holistic approach should be adopted with due regard to the Constitution, the objects of the CJA, and the specific circumstances of the offence. Children should be treated in such a way as to promote their dignity as well as their reintegration into society, having regard to the specific circumstances of the offence. In terms of the latter, children should be placed on the Register only if they pose a demonstrable risk and danger to the community.
oai:journals.assaf.org.za:article/662
2019-02-28T08:50:58Z
per:Note
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v2
https://perjournal.co.za/article/view/662
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2805-2820
Fiddling with the ECT act – Electronic signatures
Peer reviewed article
Eiselen, S
2014-11-14
url:https://perjournal.co.za/article/view/662
en_US
Amongst the changes the Department of Trade and Industry is considering is an amendment of the definition of "electronic signature". Although the amendment seems to be in line with the provisions of the UNCITRAL Model Laws on eCommerce and the 2005 UN Convention on the Use of Electronic Communications in International Contracts, the amendment sets additional and more onerous requirements for all electronic signatures. The note illustrates how this amendment undermines the key principles of functional equivalence, media neutrality and party autonomy, and how this innocuous looking amendment may have very harmful practical consequences. It is suggested that amendments to section 13 would be more appropriate to achieve the objectives of the legislature.
oai:journals.assaf.org.za:article/663
2019-02-28T08:50:58Z
per:Note
driver
v2
https://perjournal.co.za/article/view/663
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2822-2843
Frontiers of change and governance in contractual agreements: The possible role of exploitation - Uniting Reformed Church De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC)
Peer reviewed article
Hawthorne, L
2014-11-14
url:https://perjournal.co.za/article/view/663
Constitution
contract law
public policy
inequality of bargaining power
exploitation
en_US
In the South African common law of contract there appears to be support for the open norm of public policy as a general clause to ameliorate the effects of unfair contracts and terms which are contrary to public policy. The courts have on several occasions held that contracts or terms would be regarded as contrary to public policy had they come about where the parties were in an unequal bargaining relationship and this inequality was linked with another factor(s). In this case note it is argued that the element of unequal bargaining position may be contrary to public policy if it is linked with exploitation as the other factor. The element of exploitation was highlighted in the recent court decision of Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). In this case the applicant church owned three properties on which were three schools under the control of the State. The church and the State had concluded 20-year notarial leases in respect of each of the properties. A term in the contract provided that after the expiration of the lease period the church would transfer the properties to the State free of charge. After the expiration of the leases the State demanded the transfer of the properties. The church disputed the claim, averring that the term was unenforceable because the parties had been in an unequal bargaining position and that the enforcement of the term constituted expropriation in contravention of the property clause of the Constitution. It is submitted that expropriation without compensation is not only contrary to section 25 of the Constitution but constitutes exploitation. It is suggested that where exploitation results from an unequal bargaining relationship it provides the "further factor" that, together with the inequality in bargaining power, is sufficient to establish that the term or contract is in conflict with public policy. This contributes to giving meaning to the term "public policy". To support this argument, reference is made to the German Civil Code, the Swiss Civil Code, consumer protection legislation and the philosophy of Wertheimer.
oai:journals.assaf.org.za:article/664
2019-02-28T08:50:58Z
per:Note
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v2
https://perjournal.co.za/article/view/664
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2845-2868
Defamation on facebook: Isparta V Richter 2013 6 SA 529 (GP)
Peer reviewed article
Roos, A
Slabbert, M
2014-11-14
url:https://perjournal.co.za/article/view/664
Applicable law
apology
boni mores
defamation
ECT Act
electronic media
Facebook
fair comment
freedom of expression
freedom of speech
grounds of justification
harmful content
intent
internet
internet service provider liability
interdict
en_US
Litigation involving social media is still very new in South Africa and only a few reported cases can be found. In this case discussion, a brief overview is given of the few cases already reported, but in the main the case of Isparta v Richter 2013 6 SA 4529 (GP) is discussed. In this case a South African court for the first time awarded damages to the plaintiff for defamatory comments made on Facebook. The questions that confronted the judge were whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. The issue whether the "tagging" of another user of Facebook makes that user liable for the defamatory comments of the tagger is also addressed in the case. The case discussion concludes with a reference to other issues that could play a role in litigation involving Facebook, namely the Electronic Communications and Transactions Act 25 of 2002 and foreign law.
oai:journals.assaf.org.za:article/665
2019-02-28T08:50:58Z
per:Note
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v2
https://perjournal.co.za/article/view/665
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2870-2891
Reasonable accommodation in the workplace: To be or not to be?
Peer reviewed article
Bernard, RB
2014-11-14
url:https://perjournal.co.za/article/view/665
en_US
Freedom of religion is a fundamental right enshrined in and protected by section 15 of the Constitution. This right allows for the practice of religion without interference from the state and individuals. A question which often arises relates to the extent to which freedom of religion can be exercised in the workplace.Religious practice often extends beyond societal norms, but religious intolerance has proven to be a source of conflict. In the workplace this conflict arises "where the employer's right to the employee's labour and service conflicts with the employee's inability or refusal to render services because of a religious or cultural belief".1 The courts have played an important role in balancing the rights of the employer to manage his business operations efficiently with the rights of the employee to practice his religious or cultural beliefs. The critical question is how the employer is expected to balance and maintain an orderly, disciplined and efficient workplace whilst accommodating an employee's right to religious freedom.The case of Department of Correctional Services v Police and Prison Civil Rights Union (POPCRU) 2011 32 ILJ 2629 (LAC) is one where the employer's application of rules relating to the dress code of employees impacted on the religious beliefs and practices of five staff. In this note, this decision and the decisions in other recent cases are analysed in order to determine how the courts have dealt with the issue of the reasonable accommodation of religious practices in the workplace.The employer in the POPCRU case2 was justified in wanting to improve the discipline and standards within the prison. The findings of the LAC and SCA were indeed correct: while the dress code appeared to be neutral, the actual impact resulted in the disparate treatment of the employees. They were discriminated against as a result of wearing dreadlocks. The employer failed to reasonably accommodate the religious beliefs of the employees, and had it done so dismissal would not have occurred.The employees illustrated that the wearing of dreadlocks was a sincerely held belief, which was a central tenet of their religion. The employer was made aware of this fact, and despite this, they were dismissed. The employer was unable to illustrate that the rule against the wearing of dreadlocks was fair, and neither could the employer illustrate that this rule was an inherent requirement of the job.It is important to note the trend that has emerged:a. For an employee to succeed in a claim for unfair dismissal on the basis of religious discrimination, the employee will have to establish that the belief is sincerely held. Thus, according to Pillay,3 employers are required to implement positive measures to reasonably accommodate the religious practices of an employee.b. The employer will have to establish that the religious discrimination is fair or that the rule or practice prohibiting the employee's freedom of religion is in terms of an inherent requirement of the job. In order to justify the dismissal of an employee, the employer has to show that the policy or rule was an inherent requirement of the job.c. Society has evolved. Employers therefore need to reasonably accommodate the sincerely held religious beliefs of employees."When entering the workplace, employees do not leave behind their personalities, their likes and dislikes, their convictions or their faiths and beliefs, morals, sentiments and, of course, religious beliefs."4 A concerted effort is therefore required of employers to accommodate diversity and promote religious freedom in the workplace.
oai:journals.assaf.org.za:article/666
2021-08-10T10:33:51Z
per:Note
driver
v2
https://perjournal.co.za/article/view/666
2021-08-10T10:33:51Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2893-2914
Afriforum v Malema: The limits of law and complexity
Peer reviewed article
Buitendag, N
Van Marle, K
2014-11-14
url:https://perjournal.co.za/article/view/666
Afriforum
Julius Malema
Niklas Luhmann
Paul Ricoeur
Paul Cilliers
autopoiesis
narrative time
slowness
complexity
legal communication
identity
en_US
The Afriforum v Malema 2011 6 SA 240 (EqC) case drew considerable attention in the media and in the public discourse. The purpose of this note is to reflect upon the judgment from a theoretical vantage point. More specifically, by reading the judgment through an autopoietic systems theory lens, some points of criticism on the judgment in particular and the law in general become apparent. It is contended that the judgment illustrates how law necessarily excludes the factual complexity of a case, first by deciding which are the only facts legally relevant, and then second by reducing their meaning to a simple judgment of legal or illegal. Since law recognises only legal communication, this function means that the communication and identity are removed from legal subjects and given legal meanings. An attempt is made to open law to considerations external to what it traditionally considers to be relevant to its operation. The problem that law excludes facts it deems irrelevant is addressed through the introduction of a third value whereby to measure the legal and illegal, namely justice. Through asking if its judgments of legal or illegal are just, law becomes capable of reflexive self-observation. In this manner the very complex historical and narrative trappings of the case at hand do not need to be excluded as they are in the judgment. Rather than absolute, binary judgments, a slower, reflective engagement that makes modest claims is supported.
oai:journals.assaf.org.za:article/667
2019-02-28T08:50:58Z
per:Note
driver
v2
https://perjournal.co.za/article/view/667
2019-02-28T08:50:58Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 6 (2014); 2916-2949
A critical analysis of the majority judgment in F v Minister of Safety and Security 2012 1 SA 536 (cc)
Peer reviewed article
Linscott, JA
2014-11-14
url:https://perjournal.co.za/article/view/667
Delict
vicarious liability
course and scope rule
deviation cases
"sufficiently close connection" test
fundamental rights
state liability
development of common law in terms of Constitution of the Republic of South Africa
1996
Constitutional Court
en_US
The majority judgment of Mogoeng CJ in F v Minister of Safety and Security 2012 1 SA 536 (CC) purports to be a straightforward application of the reasoning of the Constitutional Court in K v Minister of Safety and Security 2005 6 SA 419 (CC), in which the court updated and constitutionalised the "standard test" for vicarious liability in deviation cases originally set out in Minister of Police v Rabie 1986 1 SA 117 (A) by holding that constitutional and other policy norms now play an important role in deciding questions of vicarious liability. However, it is respectfully submitted that a close reading of the majority judgment in F reveals that the judge misconstrues several key concepts related to the doctrine of vicarious liability. In particular, the judge seems to suggest that there are separate and different tests for vicarious liability in instances where an employee has plainly committed a delict in the course and scope of his employment, and where he has to some extent deviated from his employment duties. In fact, there is a single overarching test for vicarious liability - the course and scope rule - but various subsidiary tests are used by the courts to address difficult or borderline cases. It is also questionable whether F truly is a "typical deviation case", as the judge asserts. The judge then applies the constitutionalised test for vicarious liability originally set out in K in a manner which is subtly, but significantly, different from how it was deployed in that case. In particular, Mogoeng CJ's implication that it is not necessary for a court to consider the second leg of the Rabie test in circumstances where the employee wrongdoer has clearly subjectively intended to further the interests of his employer is undesirable and should not be supported. Furthermore, the judge identifies the question of whether or not there is an "intimate link" between the conduct of the employee wrongdoer and the business of his employer as one of the normative issues to be canvassed in order to determine the outcome of the second leg of the Rabie test. In fact, the "intimate link" question is the overall one to be decided in terms of the second leg of the Rabie test, which, in terms of the approach set out by O'Regan J inK, is to be answered by considering a range of factual and normative considerations in conjunction with one another. Moreover, the judge appears to construe the "intimate link" question in primarily factual terms. The discrepancies between the approaches of the courts in K and F are significant because they lead Mogoeng CJ to place a far heavier reliance on factual considerations in deciding whether the conduct of the employee wrongdoer was sufficiently closely related to the employer's business than would have been the case if he had more faithfully applied the test for vicarious liability set out in K. Although the judge devotes a considerable portion of the judgment to the normative issues which point to the need for the court to make a finding of vicarious liability, these do not seem to have been the immediate driver of his ultimate decision to impose vicarious liability in this instance. The reasoning of the majority in F becomes all the more problematic when one considers that the factual considerations linking the employee wrongdoer's conduct to the business of the SAPS are far more tenuous in this case than in K. A more compelling justification for imposing vicarious liability in F would have lain in the normative constitutional considerations that point towards the need to impose vicarious liability in this instance.
oai:journals.assaf.org.za:article/687
2019-04-15T08:29:12Z
per:Note
driver
v2
https://perjournal.co.za/article/view/687
2019-04-15T08:29:12Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1440 -1478
Regulation of Hydraulic Fracturing in South Africa: A Project Life-Cycle approach? (note)
Peer reviewed article
Du Plessis, W
2015-08-25
url:https://perjournal.co.za/article/view/687
Hydraulic fracturing regulation in South Africa
2015-regulations
GN R44 of 2015
project life-cycle approach
en_US
This note deals with the 2015 regulations pertaining to hydraulic fracturing in South Africa from a project life-cycle approach. A brief history of the fragmentation of the regulation of environmental and mining related matters is provided, followed by a discussion of the application of the 2015 regulations during the project life cycle, ie the pre-commencement phase, the design and authorisation phase, the testing phase, the operational phase and the decommissioning and closure phase.
oai:journals.assaf.org.za:article/702
2019-04-15T08:29:58Z
per:Note
driver
v2
https://perjournal.co.za/article/view/702
2019-04-15T08:29:58Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 5 (2015): Special Edition; 1845–1880
The "Brown" Environmental Agenda and the Constitutional Duties of Local Government in South Africa: A Conceptual Introduction (note)
Peer reviewed article
Du Plessis, AA
2015-08-25
url:https://perjournal.co.za/article/view/702
South African local government
brown environmental agenda
green environmental agenda
local environmental governance
constitutional environmental right
en_US
This note explores the interrelationship between ecologically sustainable development (the green environmental agenda) and pro-poor urban development and environmental health (the brown environmental agenda) in relation to local government in South Africa. The meaning and relevance of the brown agenda versus the green agenda in environmental governance are discussed in general. This discussion subsequently feeds into the argument that South Africa's constitutional environmental right also foresees the advancement of the brown environmental agenda, which has implications for the interpretation and enforcement of local government's service delivery mandate. This link between municipal service delivery and the environmental right further informs understanding of what is required of government to fulfill this right. This paper is thus devoted to an introductory conceptual framing of South Africa's environmental right that goes beyond the green agenda. This impacts on how the constitutional duties of municipalities are interpreted and executed.
oai:journals.assaf.org.za:article/729
2019-02-28T13:21:43Z
per:Note
driver
v2
https://perjournal.co.za/article/view/729
2019-02-28T13:21:43Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-18
Publisiteitsbevele as Vonnisopsie vir Regspersone - Publicity Orders as Sentencing Option for Juristic Persons
Peer reviewed article
Du Toit, Pieter Gerhardus; NORTH-WEST UNIVERSITY
2017-05-17
url:https://perjournal.co.za/article/view/729
corporations
corporate sentencing
publicity orders
en_US
This constribution addresses the issue of adverse publicity orders as a possible supplementary sentencing option for corporate offenders. In South Africa the fine is the primary sentencing option available to courts when imposing sentences on juristic persons. Fines, however, do not adequately serve the purposes of corporate sentencing. Publicity orders require the publication of an offender's conviction, sentence and the details of the offence to individulas or a group of persons (such as shareholders). An adverse publication order damages the corporate offender's reputation - a valuable asset to a corporate entity. It therefore serves the purposes of corporate deterrence. In this contribution criticim is levelled against the fine as primary sentencing option for juristic persons, the notion of corporate reputation is considered from a social and a legal perspective; a functional comparative study of adverse publication orders is presented and recommendations are made regarding the content of effective publicity orders.
oai:journals.assaf.org.za:article/741
2019-02-28T13:21:43Z
per:Note
driver
v2
https://perjournal.co.za/article/view/741
2019-02-28T13:21:43Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-18
Concern Regarding the "Debt" created by Rule 14.10.9 of the Government Employees' Pension Fund Rules
Peer reviewed article
Marumoagae, Motseotsile Clement; WITS
2017-05-17
url:https://perjournal.co.za/article/view/741
This paper highlights the prejudicial effect of the rule within the rules of the Government Employees Pension Fund (GEPF)
which allows this fund to create a
en_US
This paper highlights the prejudicial effect of the rule within the rules of the Government Employees Pension Fund (GEPF), which allows this fund to create a "divorce debt" for its member when the court has ordered that part of such a member's pension interest be paid over to his or her spouse. I argue that this debt is in fact a loan which is provided to the member, which he or she would be expected to pay when he or she exits the fund, with interest. This is despite the fact that the rules of the GEPF do not permit the granting of loans to its members. I argue that the creation of such a loan has the effect of diminishing the GEPF's member’s benefits, and thus threaten his or her social security, and can lead to the member becoming unable to provide for himself or herself when he or she reaches retirement age.
oai:journals.assaf.org.za:article/795
2019-05-03T10:11:58Z
per:Note
driver
v2
https://perjournal.co.za/article/view/795
2019-05-03T10:11:58Z
Faculty of Law, North-West University, South Africa
Vol. 19 (2016); 1-18
Legal Ethics, Rules of Conduct and the Moral Compass – Considerations from a Law Student's Perspective
Peer reviewed article
Van Zyl IV, Christoffel Hendrik; University of the Free State
Visser, Jo-Marí; University of the Free State
2017-05-17
url:https://perjournal.co.za/article/view/795
Legal ethics
morality
law students
professional conduct
moral compass
legal education
en_US
When young law graduates enter the legal profession they will undoubtedly be exposed to difficult situations that will demand of them to make difficult decisions, often having to balance conflicting systems of belief and ideas on what ethical behaviour entails. Legal ethics training in law faculties the world over often neglects teaching aspects of morality to focus on reviews of rules of professional legal conduct. This article argues that if legal education is to adequately prepare law graduates for legal practice, it must offer more than reviews of these codes of conduct. To properly assist law students in avoiding pitfalls which may lead to disciplinary action, they must be taught to appropriately use their moral compasses.
This narrative aims to show that the metaphorical moral compass, with the cardinal virtues as possible main points, may serve as the crucial and underlying guide in the avoidance of the pitfalls which may result in a person being struck from the roll, but more than that, that it may aid in the pursuit of personal dreams or goals. The article contributes to the literature on legal ethics by foregrounding the virtues that pertain to sound conduct in a lawyer, as opposed to the rules and codes, in the hope that this may help legal practitioners to decide on what is right and what is wrong.
oai:journals.assaf.org.za:article/1138
2019-04-15T08:46:07Z
per:Note
driver
v2
https://perjournal.co.za/article/view/1138
2019-04-15T08:46:07Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 7 (2015); 2803-2828
RAF v Sweatman (162/2014) [2015] ZASCA 22 (20 March 2015): A Simple Illustration of the SCA's Statutory Misinterpretation of Section 17(4)(C) of the Road Accident Fund Act 56 of 1998
Peer reviewed article
Fick, Sarah; Lecturer in Private Law, University of Cape Town, South Africa
Van der Merwe, Paul; Actuarial Science (University of Stellenbosch). Actuarial Consultant, Munro Forensic Actuaries, South Africa
2015-12-27
url:https://perjournal.co.za/article/view/1138
Road Accident Fund
interpretation of statutes
quantification of damages
expert witnesses.
en_US
In Road Accident Fund v Sweatman (162/2014) [2015] ZASCA 22 (20 March 2015) (hereafter Sweatman) the Supreme Court of Appeal was faced with the interpretation of section 17(4)(c) of the Road Accident Fund Act 56 of 1998 (the "cap provision"). The purpose of this note is to assess the court's interpretation of the "cap provision" to determine whether this interpretation is sound. This is achieved by explaining the purpose of the Road Accident Fund and the Amendment Act. Thereafter the general method of calculating loss of income is explored, together with the different interpretations of the "cap provision" and the application thereof. The abovementioned decision of the SCA on the most appropriate interpretation is then critically analysed. It is argued that the court, in Sweatman, misunderstood the implication of its decision and was therefore incapable of interpreting the provision correctly. The effect is that one of the primary purposes of the Amendment Act is circumvented.
oai:journals.assaf.org.za:article/1139
2021-09-20T12:36:30Z
per:Note
driver
v2
https://perjournal.co.za/article/view/1139
2021-09-20T12:36:30Z
Faculty of Law, North-West University, South Africa
Vol. 18 No. 7 (2015); 2777-2802
Clinical Legal Education Models: Recommended Assessment Regimes
Peer reviewed article
Du Plessis, Riette; Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
2015-12-27
url:https://perjournal.co.za/article/view/1139
CLE
clinical legal education
curriculum
assessment
law clinic
CLE model
clinic mission
CLE pedagogy
en_US
Clinical legal education (CLE) forms part of the LLB curriculum at most South African Universities. There are many similarities in the approach to CLE, but often also many differences. The clinical models of four South African university law clinics are reviewed in an effort to find suitable models. It is indicated that formulating a mission for the law clinic will have a direct impact on the clinical model chosen. The integration of CLE courses into the core curriculum of the law school will reveal CLE's value as a teaching methodology. Pedagogic aims can be set and achieved as CLE has intellectual worth in that it enables students to better understand concepts and principles of law and the application thereof in practice. It is therefore recommended that CLE courses be mandatory. The pedagogy of CLE is comprised of three basic components, namely clinical experience, tutorial sessions, and classroom instruction. The extent to which these three components find application in the four South African university law clinics under review is indicated. The principles of assessment are stated. Assessment methods appropriate for application in CLE courses, as indicated in a comprehensive study of the topic are discussed as to their applicability to CLE courses in the South African environment.
oai:journals.assaf.org.za:article/1685
2019-04-17T09:15:31Z
per:Note
driver
v2
https://perjournal.co.za/article/view/1685
2019-04-17T09:15:31Z
Faculty of Law, North-West University, South Africa
Vol. 21 (2018); 1-21
Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration
Peer reviewed article
van der Bijl, Charnelle; University of South Africa (UNISA)
2018-04-06
url:https://perjournal.co.za/article/view/1685
parental responsibility
delinquent acts of children
law of delict
criminal law
comparative approach with the United States
en_US
This contribution examines parental criminal responsibility for the delinquent acts of their children. As South African law has been swayed by legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this issue has been addressed legislatively in both civil tort law and criminal law. The reasoning behind the implementation of specific legislation in the United States is that the common law principles are rooted on the principles of individualisation, which does not specifically cater for parental liability. Parental responsibility laws have been challenged constitutionally over the years in the United States. Critics are of the view that such laws interfere with the rights of parents to raise their children and are a form of cruel punishment. Additional criticism raised is that parental responsibility laws impose strict liability on parents. Furthermore, some misgivings have been shed that many parents face challenges of being single parents or poverty, which will be exacerbated with the imposition of fines or imprisonment for the misconduct of their children. Despite these concerns and criticism, it will be shown that these laws have withstood the challenges over many decades, in the United States, in both the fields of the law of tort and criminal law. The common law of tort provides for the liability of parents for the conduct of their child. However, such conduct must be specifically attributable to a parent’s action or inaction. The purpose behind tort parental responsibility legislation focuses not only on providing monetary compensation by parents where their children are unable to do so, but also aims to encourage parents to provide better supervision of their children. At the opposite end of the spectrum, the focus of statutory criminalisation tends to remain on criminal liability of parents for failing to protect others from their child, due to a failure in supervision and to prevent juvenile delinquency. The South African law of delict is briefly contiguously considered in the context of parental responsibility laws. The concept of parental criminal responsibility laws under South African law is then considered and proffered as a useful mechanism to regulate misconduct of children currently falling outside the aegis of the criminal law.
oai:journals.assaf.org.za:article/1696
2019-10-18T06:07:44Z
per:Note
driver
v2
https://perjournal.co.za/article/view/1696
2019-10-18T06:07:44Z
Faculty of Law, North-West University, South Africa
Vol. 21 (2018); 1-23
Attacks on the Judiciary: Undercurrents of a Political versus Legal Constitutionalism Dilemma?
Peer reviewed article
Kawadza, Herbert
2018-07-02
url:https://perjournal.co.za/article/view/1696
Political constitutionalism
legal constitutionalism
judiciary
constitution
government
constitutionalism
en_US
A number of landmark judicial review decisions and the resultant political backlash are arguably to supportive of the claim that political and legal constitutionalism are entrenched in South Africa. The common thread in the legislature and executive's reaction to judicial review decisions is that government supremacy is under threat from legal constitutionalism. More specifically, there is a perception that courts are meddling in the political space through judgments that are aimed at weakening the government's authority and power. Nonetheless, such decisions have had an effect of reinforcing the judiciary's legal constitutional role of reviewing the lawfulness of the other branches' activities. There is need for strategies to minimize this tension as the continued antagonism can have unintended consequences such as the delegitimisation of the judiciary
oai:journals.assaf.org.za:article/2176
2019-02-28T08:50:14Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2176
2019-02-28T08:50:14Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 4 (2014); 1659-1689
Localising Environmental Governance: The Le Sueur Case
Peer reviewed article
Humbly, Tracy-Lynn; University Of Witswatersrand
2017-04-11
url:https://perjournal.co.za/article/view/2176
local government
environment
resilience.
en_US
In the matter of Le Sueur v Ethekwini Municipality the KwaZulu-Natal High Court decided that municipalities had the power to legislate on environmental issues such as biodiversity and conservation. This note argues that the precedent established in this case is that municipalities have authority to legislate upon environmental matters as an incident of municipal planning, which is an original constitutional power. In contrast to both the judgment and recent commentary, it argues that the source of municipal legislative authority over municipal planning is not based in legislative assignment but in s 156(5) of the Constitution (the "incidental power" provision relevant to local government). This argument is based on understanding the distinction between original and assigned powers, and the nature of the control that the national and provincial spheres exercise over Schedule 4B powers. Notwithstanding this inaccuracy in the judgment, it is argued that the precedent is a welcome one that can be justified not only on the basis of the principle of subsidiarity but also in terms of the emerging and increasingly important theory of social-ecological resilience.
oai:journals.assaf.org.za:article/2177
2019-02-28T08:50:14Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2177
2019-02-28T08:50:14Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 4 (2014); 1690-1708
Peel v Hamon J & C Engineering (Pty) Ltd: Ignoring the Result-Requirement of Section 163(1)(A) of the Companies Act and Extending the Oppression Remedy Beyond its Statutorily Intended Reach
Peer reviewed article
Beukes, HGJ; Unisa
Swart, WJC; Unisa
2017-04-11
url:https://perjournal.co.za/article/view/2177
Section 163
oppression
unfair prejudice
unfair disregard
interests
company law
corporate law
minority protection
en_US
This case note provides a concise and understandable version of the confusing facts in Peel v Hamon J&C Engineering (Pty) Ltd, and deals with the remedy provided for in section 163 of the Companies Act (the oppression remedy). The importance of drawing a distinction between the application of this section and the orders that the Court can make to provide relief in terms of subsection (2) is explained, after which each requirement contained in subsection (1)(a) is analysed. With reference to the locus standi-requirement, it is indicated that the judgment is not to be regarded as authority for the contention that a shareholder or a director who wants to exercise the oppression remedy need not have been a shareholder or a director of the company at the time of the conduct. With reference to the conduct-requirement, it is indicated that it would have been more appropriate for the applicants to have made use of a remedy in terms of the law of contract. Most importantly, the result-requirement is indicated to have been ignored, as a lack of certainty that there will be a result is argued not to constitute a result. Ignoring the result-requirement is explained to have resulted in ignoring the detriment-requirement, in turn. Accordingly, it is concluded that the oppression remedy was utilised without the specified statutory criteria having been satisfied and that the applicants' interests were protected by a remedy which should not have found application under the circumstances, as this was beyond the remedy's statutorily intended reach.
oai:journals.assaf.org.za:article/2178
2019-02-28T08:50:14Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2178
2019-02-28T08:50:14Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 4 (2014); 1709-1738
Sailing between Scylla and Charybdis: Mayelane v Ngwenyama
Peer reviewed article
Kruuse, Helen; Rhodes University
Sloth-Neilsen, Julia; University Of The Western Cape
2017-04-11
url:https://perjournal.co.za/article/view/2178
Customary marriages
Mayelane
living law
consent
evidence.
en_US
Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.
oai:journals.assaf.org.za:article/2257
2019-02-28T08:49:21Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2257
2019-02-28T08:49:21Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 1 (2014); 520-552
The Modern-Day Impact of Cultural and Religious Diversity: "Managing Family Justice in Diverse Societies"
Peer reviewed article
Rautenbach, Christa; North-West University(Potchefstroom Campus)
2017-04-21
url:https://perjournal.co.za/article/view/2257
State’s human rights obligations
transnational companies and human rights
extractive industries
Nigeria and South Africa
en_US
Transnational companies (TNCs) in general and those operating in the extractive industry sector in particular have an impact on the realisation of human rights. Yet under international human rights law, instruments regulating TNCs’ obligations in terms of human rights are non-binding. Consequently, the state in which TNCs operate remains the only duty bearer of human rights and should ensure that companies under its jurisdiction comply with human rights.
The aim of this article is to examine the extent to which Nigeria and South Africa comply with their obligations to ensure that TNCs in extractive industries operating within their borders promote and respect human rights. Ultimately it is argued that the legal architecture in the countries under study does not satisfactorily shield people from the actions of TNCs.
In an attempt to remedy the situation, it is suggested that a way forward could be constructed on the following pillars: inserting human rights clauses into international trade and investment agreements; raising awareness of and sensitization on the importance of corporate social responsibility as a "profit maximising mechanism"; turning corporate social responsibility into binding human rights obligations; and using international human rights monitoring mechanisms. Though the points made in this article generally engage the human rights impacts of extractive industries in Nigeria and South African, the proposed solutions are generalisable to other societies in which these industries operate.
oai:journals.assaf.org.za:article/2258
2019-02-28T08:49:21Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2258
2019-02-28T08:49:21Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 1 (2014); 553-565
The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order
Peer reviewed article
De Wet, Erika; University of Pretoria
2017-04-21
url:https://perjournal.co.za/article/view/2258
Relationship between international and domestic law
recognition and enforcement of foreign judgments
international civil procedure
SADC Tribunal
rule of law.
en_US
The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa.
At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law.
Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.
oai:journals.assaf.org.za:article/2263
2019-02-28T08:49:21Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2263
2019-02-28T08:49:21Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 1 (2014); 566-594
The Legislative Authority of the Local Sphere of Government to Conserve and Protect the Environment: A Critical Analysis of Le Sueur v eThekwini Municipality [2013] ZAKZPHC 6 (30 January 2013)
Peer reviewed article
Freedman, Warren; University of KwaZulu-Natal
2017-04-21
url:https://perjournal.co.za/article/view/2263
Constitution
allocation of legislative authority
local government
environment
municipal planning
Durban Open Space System (DMOSS)
constitutional validity of municipal laws.
en_US
Legislative authority in South Africa is divided among the national, provincial and local spheres of government. Section 43 of the Constitution provides in this respect that the legislative authority of the national sphere of government is vested in Parliament; that the legislative authority of the provincial sphere of government is vested in the provincial legislatures; and that the legislative authority of the local sphere of government is vested in the municipal councils.
The allocation of legislative authority to municipal councils gives rise to a number of complex questions. One of these is the extent to which municipal councils are entitled to pass legislation that deals with the conservation and protection of the "environment". This issue was considered by the KwaZulu-Natal High Court: Pietermaritzburg in Le Sueur v eThekwini Municipality [2013] ZAKZPHC 6 (30 January 2013).
In this case the High Court found that even though the functional area of "environment" has been explicitly allocated to the national and provincial spheres of government and not to the local sphere by the Constitution (see Schedule 4A of the Constitution), municipal councils are entitled to pass legislation that deals with the conservation and protection of the "environment", at least in those circumstances where it forms a part of "municipal planning".
While there is no doubt that the functional area of "municipal planning" does encompass certain specific environmental matters at the local level, it does not encompass the broad area of the "environment", as the High Court suggests in its judgment. The approach adopted by the High Court, therefore, is open to some criticism. The purpose of this article is to set out and discuss the High Court’s judgment as well as the criticisms that may be levelled against it in the light of the allocation of legislative authority to the three spheres of government.
oai:journals.assaf.org.za:article/2267
2019-02-28T08:49:21Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2267
2019-02-28T08:49:21Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 1 (2014); 595-612
The Interpretation to be accorded to the Term "Benefits" in Section 186(2)(A) of the LRA Continues: Apollo Tyres South Africa (PTY) LIMITED v CCMA (DA1/11) [2013] ZALAC 3
Peer reviewed article
Ebrahim, Shamier; University of South Africa
2017-04-21
url:https://perjournal.co.za/article/view/2267
Benefits
remuneration
disputes
collective bargaining
arbitration
strike action
unfair labour practice
unfairness
en_US
The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) Ltd[1] the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa Ltd[2] the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial Administration[3] the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action).
In Protekon (Pty) Ltd v CCMA[4] the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer’s conduct then this is subject to arbitration.[5]
It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.[6] The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon.
Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apolloare stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA.
oai:journals.assaf.org.za:article/2292
2019-02-28T08:49:59Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2292
2019-02-28T08:49:59Z
Faculty of Law, North-West University, South Africa
Vol. 17 No. 3 (2014); 1196-1205
The Unconstitutional Practices of the Judicial Service Commission under the Guise of Judicial Transformation: Cape Bar Council V Judicial Service Commission [2012] 2 ALL 143 (WCC)
Peer reviewed article
Radebe, Martha Keneilwe; University Of Pretoria
2017-04-24
url:https://perjournal.co.za/article/view/2292
Judicial recommendations
rule of law
accountability
transparency
public functionaries
rationality
legality
just administrative action
arbitrariness
en_US
This contribution aims to point out valuable lessons from the shortcomings of the Judicial Service Commission as highlighted in the case of The Cape Bar Council v The Judicial Service Commission. The case involved the failure by the Judicial Service Commission to fill vacancies at the Western Cape High Court despite there being highly eligible candidates available for appointment. The judgment serves as a reminder to the Judicial Service Commission that as a public functionary it is subject to the rule of law and to the constitutional principles of accountability and transparency. Public functionaries are further reminded that they are subject to constitutional control. Such control is essential in ensuring that any abuse of power does not take place.
oai:journals.assaf.org.za:article/2316
2019-02-28T08:47:13Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2316
2019-02-28T08:47:13Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 1 (2013); 404-425
The Enforcement of the Payment of Lobolo and its Impact On Children’s Rights in South Africa
Peer reviewed article
Ngema, Nqobizwe Mvelo; Universsity of Zululand
2017-04-26
url:https://perjournal.co.za/article/view/2316
customary law
lobolo
theleka custom
custody
best interest of a child
family violence
en_US
Various communities in South Africa practise the custom of lobolo (payment in kind or cash by a prospective husband or the head of his family to the head of the prospective wife’s family in consideration of a customary marriage). These communities may be divided into two groups, those practicing theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) and those that do not. In the communities practising theleka the amount of lobolo is not fixed and the father or guardian of the wife may from time to time theleka the wife and demand one to three head of cattle from his son-in-law. The wife and her children, if there are any, may be held by their maternal grandfather until the payment of lobolo has been met. The main issue this article examines is whether the custom of theleka impacts on the custody of children or not. It also examines the concept of the best interests of the child and finds that theleka custom in its current form does impact on the custody of the child and conflicts with the child’s best interests. The article suggests that theleka custom needs to be developed to conform to the Constitution. It also examines whether or not the custom of theleka constitutes abduction and family violence. The writer submits that it does not constitute abduction and family violence and advocates that theleka custom be allowed to continue.
oai:journals.assaf.org.za:article/2317
2019-02-28T08:47:13Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2317
2019-02-28T08:47:13Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 1 (2013); 426-449
The Paradox of Migration and the Interests of the Atomistic Nation-States: The Southern African Perspective
Peer reviewed article
Ngandwe, Phazha Jimmy; University of South Africa
2017-04-26
url:https://perjournal.co.za/article/view/2317
Citizenry
globalisation
migration
mobility
regional integration
paradoxical
phenomenon
psycho-social
nation-states
en_US
The "paradox of migration and the interests of the atomistic nation-states" interrogates the phenomenon of migration in general and in the Southern African Development Community in particular. The point of departure of the paper is the African Union and the Southern African Development Community’s legal framework on migration, as read with the national legal instruments of the different member states. Its focal point is the raison d’être of this phenomenon of migration and the corresponding approaches and attitudes of the nation-states within which migration takes place inter se. This includes the psycho-social impact of migration. Internationally as well as regionally, States are concerned with issues of sovereignty, the preservation of the welfare of the citizenry, ensuring social cohesion social, cultural and economic development including job creation, and fighting against transnational organised crime, including terrorism. The theme of the paper is that whereas migration should form the bedrock of regionalism and globalisation, the negative attitudes of the nation-states to migration are more often than not at variance with the objectives of regionalism and globalisation. The central question of the research is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international as well as regional integration objectives of the free movement of people. This is the issue that the paper is intended to explore. The main areas of concern are that the negative attitudes of the nation-states are manifested in the hostile treatment of migrants at all ports of entry, including illegal or ungazetted points of entry, within the nation-states in general, and in their labour markets in particular. This research therefore explores the paradoxical nature of the duties and responsibilities of states within the migration and mobility discourse. The paper will conclude by making practical recommendations aimed at influencing policy and law.
oai:journals.assaf.org.za:article/2318
2019-02-28T08:47:13Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2318
2019-02-28T08:47:13Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 1 (2013); 450-481
Protecting Critical Databases – Towards a Risk Based Assessment of Critical Information Infrastructures (CIIS) in South Africa
Peer reviewed article
Njotini, Mzukisi Niven; University of South Africa
2017-04-26
url:https://perjournal.co.za/article/view/2318
Critical databases
critical information infrastructures
national security
social and economic well-being
en_US
South Africa has made great strides towards protecting critical information infrastructures (CIIs). For example, South Africa recognises the significance of safeguarding places or areas that are essential to the national security of South Africa or the economic and social well-being of South African citizens. For this reason South Africa has established mechanisms to assist in preserving the integrity and security of CIIs. The measures provide inter alia for the identification of CIIs; the registration of the full names, address and contact details of the CII administrators (the persons who manage CIIs); the identification of the location(s) of CIIs or their component parts; and the outlining of the general descriptions of information or data stored in CIIs.
It is argued that the measures to protect CIIs in South Africa are inadequate. In particular, the measures rely on a one-size-fits-all approach to identify and classify CIIs. For this reason the South African measures are likely to lead to the adoption of a paradigm that considers every infrastructure, data or database, regardless of its significance or importance, to be key or critical.
oai:journals.assaf.org.za:article/2319
2019-02-28T08:47:13Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2319
2019-02-28T08:47:13Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 1 (2013); 482-504
The Impact on Women on the Removal of Gender as a Rating Variable in Motor-Vehicle Insurance
Peer reviewed article
Wagener, Anthea Natalie; University of South Africa
2017-04-26
url:https://perjournal.co.za/article/view/2319
Insurance risk assessment
insurance
rating
rating variables
motor-vehicle insurance
gender rating
impact on women
discrimination
unfair discrimination
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
American case law
en_US
Insurers use actuarial statistics as rating variables to differentiate and distinguish for the purposes of risk classification. They justify their use of actuarial statistics due to its accuracy as a predictor of risk. South African motor-vehicle insurers use gender, inter alia, as a rating variable to classify risks into certain classes and to determine insurance premiums. Depending upon whether the insured is male or female, it could have a significant impact on the cost of his or her premium. Women drivers pay less for motor-vehicle insurance because actuarial statistics indicate that women are more careful drivers and are involved in 20 per cent fewer accidents than men. Men pay higher premiums because the statistics indicate that they are less responsible drivers than women. Should a South African court decide that the use of gender as a motor-vehicle insurance rating variable is unfair discrimination, this would benefit male drivers, as it would lower their premium. Women, on the other hand, would be disadvantaged as they would be required to pay higher premiums to subsidise men. The article examines the impact that the removal of gender as a rating variable in motor-vehicle insurance would have on women, and asks if the effects thereof would influence a South African Court’s decision in determining if the use of gender as a rating variable amounts to unfair discrimination. The article first considers the findings of American and Canadian Courts in determining this same issue and then considers South African equality legislation, particularly the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”). Thereafter, the article provides recommendations for a South African Court. As the Equality Act indicates that the discriminatory insurance practice of placing a disadvantage or advantage on persons based inter alia on their gender may possibly be unfair, it is suggested that South African insurers would have to consider alternative methods of risk assessment. In the light of the American and the Canadian case law, the article suggests that there should be a change of approach to insurance risk assessment. Rather than using gender as a rating variable the insurer could assess the risk of the individual insured, using appropriate, neutral rating variables suited to the particular circumstances of the insured. This would require a much more intensive and individualised risk evaluation and would require the insurer to “tailor-make” insurance for each individual. It is submitted that such an approach would give effect to the right to equality by disallowing the use of gender as a rating variable without producing the undesirable consequence that women drivers would have to subsidise men.
oai:journals.assaf.org.za:article/2320
2019-10-01T07:58:03Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2320
2019-10-01T07:58:03Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 1 (2013); 505-536
The History of Labour Hire in Namibia: A Lesson for South Africa
Peer reviewed article
Botes, Anri; North-West University(Potchefstroom Campus)
2017-04-26
url:https://perjournal.co.za/article/view/2320
Labour hire
Namibia
temporary employees
exploitation of contract labour system
SWANLA
Namibian Labour Act
labour hire banned
regulation of Africa Personnel Services
Labour Amendment Act
Employment Services Act
labour brokers
South Africa
preca
en_US
Labour hire, the practice of hiring out employees to clients by a labour broker, has been a part of Namibia’s history since the early 1900s in the form of the contract labour system. This form of employment was characterized by inhumanity and unfair labour practices. These employees were subjected to harsh working conditions, inhumane living conditions and influx control. The contract labour system continued until 1977, when it was abolished by the General Law Amendment Proclamation of 1977. It was during the 1990s that the hiring out of employees returned in the form of labour hire. It continued in this form without being regulated until it was banned in the Namibian Labour Act of 2007. In 2009 Africa Personnel Services, Namibia’s largest labour broker, brought a case before the court against the Namibian Government in an attempt to have the ban nullified on grounds of unconstitutionality. It argued that the ban infringed on its right to carry on any trade or business of its choice as contained in section 21(1)(j) of the Constitution of the Republic of Namibia. APS triumphed. It was not until April 2012 that new legislation was promulgated in order to officially lift the ban and to regulate labour hire in its current form. This new legislation came into force in August 2012. Various very important provisions are contained in the Labour Amendment Act 2 of 2012 concerning labour brokers. Part IV of the Employment Services Act 8 of 2011, containing provisions for the regulation of labour brokers as juristic persons per se, was also introduced and came into force in September 2012. The aim of this note is to serve as a lesson to the South African government as to what could happen if labour brokers continue without legislation properly addressing the pitfalls associated with labour brokers. Also, it could serve as an example as to how the employees of a labour broker should be protected. In this regard the history of labour hire and the current strides in Namibia cannot be ignored.
oai:journals.assaf.org.za:article/2347
2019-10-01T10:09:03Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2347
2019-10-01T10:09:03Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 2 (2013): Special Edition; 184-212
Protecting Ecosystems by way of Biological Control: Cursory Reflections on the Main Regulatory Instruments for Biological Control Agents, Present and Future
Peer reviewed article
Albert, Reece; Nort West University(Potchefstroom Campus)
Moolman, Jurie; North West University(Potchefstroom Campus)
2017-05-03
url:https://perjournal.co.za/article/view/2347
Biological control and regulation
alien and invasive plants
alien and invasive species
ecosystem
ecosystem services
biodiversity
Conservation of Agricultural Resources Act
Agricultural Pests Act
National Environmental Management
Biodiversity Act
en_US
Although there are numerous threats to ecosystems and the resultant ecosystem services, alien and invasive plants (AIP) have been identified as being one of the major causes of ecosystem destruction. In addressing the threat of alien and invasive plants through the use of various mechanisms, the regulatory framework imposed by legislation is key in ensuring that that controlling AIPs does in fact not do more harm than good. One such control mechanism, which has the potential to do wonders or wreak havoc if not adroitly implemented, is that of using biological control agents. This contribution provides a brief overview on the three main regulatory instruments used to control biological control agents in South Africa, namely the Conservation of Agricultural Resources Act 43 of 1983, the Agricultural Pests Act 36 of 1983 and the National Environmental Management: Biodiversity Act 10 of 2004. It also considers possible future developments on the regulation of biological control agents.
oai:journals.assaf.org.za:article/2377
2019-02-28T08:47:54Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2377
2019-02-28T08:47:54Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 3 (2013); 376-392
The Impact of the National Credit Act 34 of 2005 on the Enforcement of a Mortgage Bond: Sebola v Standard Bank of South Africa Ltd 2012 5 SA 142 (CC)
Peer reviewed article
Fuchs, Michelle MM; NWU
2017-05-03
url:https://perjournal.co.za/article/view/2377
Consumer in default
Debt enforcement
Delivery
Notice of default
Notice requirements
Track and trace print-out
en_US
When a mortgagor is in default and the mortgagee wants to enforce the debt the National Credit Act (hereafter the NCA) may apply. A credit agreement may be enforced in court by a credit provider against a defaulting debtor only once the requirements of sections 129 and 130 of the NCA have been adhered to. If a mortgagor (who is a protected consumer in terms of the NCA) is in default, the mortgagee must deliver a section 129(1) notice to the consumer, thereby drawing the default to the attention of the consumer. For a number of years there has been uncertainty about the interpretation of section 129(1) and how it affects the execution procedure in the case of a mortgage bond over immovable property. The recent Constitutional Court judgment of Sebola v Standard Bank 2012 5 SA 142 (CC) overturns, to my mind, the more reasonable approach to such notices in Rossouw v Firstrand Bank Ltd (2010 6 SA 439 (SCA)). It was held in Sebola that before instituting action against a defaulting consumer, a credit provider must provide proof to the court that a section 129(1) notice of default (i) has been despatched to the consumer's chosen address and (ii) that the notice reached the appropriate post office for delivery to the consumer, thereby coming to the attention of the consumer. In practical terms the credit provider must obtain a post-dispatch "track and trace" print-out from the website of the South African Post Office. There is now a much heavier burden on a bank to ensure that proper proof is provided that the notice was sent and delivered to the correct address. Consequently it places another hurdle in the path of a mortgagee who wishes to foreclose.
oai:journals.assaf.org.za:article/2409
2019-04-17T09:14:09Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2409
2019-04-17T09:14:09Z
Faculty of Law, North-West University, South Africa
Vol. 21 (2018); 1-20
"Violence" In Sport and the Violenti non Fit Iniuria Defence: A Perspective on the Death of the Cricket Player Phil Hughes
Peer reviewed article
Labuschagne, Pieter; Unisa
2018-03-27
url:https://perjournal.co.za/article/view/2409
Defence of violenti non fit inuiria
contra bones mores
wrongfulness
sport
cricket
en_US
The article evaluates the defence of violenti non fit inuiria in sport with specific reference to the principle of bones mores or the good morals in society to tolerate injuries in sport. The increase occurrences of serious injuries in sport in the professional era, where sportsmen earn their livelihood from sport, necessitate a revisit of the existing situation. The death of the Australian cricket player, Phil Hughes, as a result of fast short-pitched bowling in cricket, has again put the spotlight on aggressive and excessive use of "violence" in sport. The malicious intent in sport, to harm and even kill an opponent, has warranted and necessitated the question as to whether there should be any difference in the manner in which the perpetrator of violence in sport should be treated compared to ordinary criminal law assault and murder offenders. In the article a two-pronged approach is suggested as a possible solution to deal with wrongfulness in cricket.
oai:journals.assaf.org.za:article/2419
2019-04-05T06:29:56Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2419
2019-04-05T06:29:56Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 4 (2013); 350-367
The Regulation of the Possession of Weapons at Gatherings
Peer reviewed article
du Toit, Pieter; North West University(Potchefstroom Campus)
Ferreira, Gerrit; North West University(Potchefstrrom Campus)
2017-05-17
url:https://perjournal.co.za/article/view/2419
Dangerous weapons
culture
public gatherings
demonstrations
religion.
en_US
The Dangerous Weapons Act 15 of 2013 provides for certain prohibitions and restrictions in respect of the possession of a dangerous weapon and it repeals the Dangerous Weapons Act 71 of 1968 as well as the different Dangerous Weapons Acts in operation in the erstwhile TBVC States. The Act also amends the Regulation of Gatherings Act 205 of 1993 to prohibit the possession of any dangerous weapon at a gathering or demonstration. The Dangerous Weapons Act provides for a uniform system of law governing the use of dangerous weapons for the whole of South Africa and it furthermore no longer places the onus on the individual charged with the offence of the possession of a dangerous weapon to show that he or she did not have any intention of using the firearm for an unlawful purpose. The Act also defines the meaning of a dangerous weapon. According to our court’s interpretation of the Dangerous Weapons Act 71 of 1968 a dangerous weapon was regarded as an object used or intended to be used as a weapon even if it had not been designed for use as a weapon. The Act, however, requires the object to be capable of causing death or inflicting serious bodily harm if it were used for an unlawful purpose. The possession of a dangerous weapon, in circumstances which may raise a reasonable suspicion that the person intends to use it for an unlawful purpose, attracts criminal liability. The Act also provides a useful set of guidelines to assist courts to determine if a person charged with the offence of the possession of a dangerous weapon had indeed intended to use the weapon for an unlawful purpose. It seems, however, that the Act prohibits the possession of a dangerous weapon at gatherings, even if the person carrying the weapon does not intend to use it for an unlawful purpose. The state will, however, have to prove that the accused had the necessary control over the object and the intention to exercise such control, as well as that the object is capable of causing death and inflicting serious bodily harm if it were used for an unlawful purpose.
The Act does not apply to the following activities: (a) possession of dangerous weapons in pursuit of any lawful employment duty or activity; (b) possession of dangerous weapons during the participation in any religious or cultural activities or lawful sport, recreation or entertainment or (c) legitimate collection, display or exhibition of weapons. It is suggested that these exclusions are acceptable if the religious and cultural events referred to are not of a "protesting" or "confrontational" nature. If such events are indeed "protesting" or "confrontational" in nature, they are covered by section 17 of the Constitution (which authorises only peaceful and unarmed assembly, demonstration, picketing and the presentation of petitions). Religious and cultural events of a "protesting" or "confrontational" character, where dangerous weapons are displayed, run the serious risk of turning violent, and may result in a violation of section 12(1)(c) of the Constitution, which embodies the right of everyone to be free from all forms of violence.
oai:journals.assaf.org.za:article/2420
2019-02-28T08:48:09Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2420
2019-02-28T08:48:09Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 4 (2013); 368-395
Harnessing Intellectual Property for Development: Some Thoughts on an Appropriate Theoretical Framework
Peer reviewed article
Ncube, Caroline Bongiwe; University of Cape Town
2017-05-17
url:https://perjournal.co.za/article/view/2420
Intellectual property
equity
stakeholder interests
right to work
access to knowledge.
en_US
This paper considers how an appropriate theoretical framework for Intellectual Property may be constructed. Such a framework would be the lens through which contested IP issues may be resolved and upon which national IP policy and legislation might be based. The paper begins by highlighting the inherent tensions in IP, which are caused by the various stakeholder interests that this body of law seeks to balance, and by the cross-cutting nature of IP. It contends that in order to more equitably balance the contesting rights of the creators and users, IP rights should be formulated and enforced so as to meet societal goals or serve public interest, be responsive to the economic environment, and take cognisance of the human rights claims of both creators and users.
National socio-economic goals should inform such a framework in a way that ensures that IP is used as a means to achieve these goals and is not perceived as an end. This will require nuances in policy and legislation that meet the country's needs. In particular, as a developing country South Africa would do well to exploit available flexibilities in the various international IP agreements by which it is bound.
Due regard also ought to be had to the users' need for affordable access to IP-protected goods in order that they may exercise the right to work and access to knowledge, as provided for by ss 22 and 16 of the Constitution respectively. Similarly, creators ought to be given due recognition, together with reasonable reward and remuneration for their efforts. This will be achieved through the creation of an IP system that provides protection that is compatible with the nature of the good being protected and the manner in which the creative process unfolds. Such protection should rely on registration systems are efficient, simplified and affordable. The accompanying enforcement system should be equally accessible, although the costs of enforcement would depend on the forum used to secure redress. Finally, the resulting IP regulatory framework should be both certain and clear.
oai:journals.assaf.org.za:article/2422
2019-02-28T08:48:09Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2422
2019-02-28T08:48:09Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 4 (2013); 421-471
Arbitrary Deprivation of an Unregistered Credit Provider's Right to Claim Restitution of Performance Rendered: Opperman v Boonzaaier (24887/2010) 2012 ZAWCHC 27 (17 April 2012) and National Credit Regulator v Opperman 2013 2 SA 1 (CC)
Peer reviewed article
Brits, Reghard; Stellenbosch University
2017-05-17
url:https://perjournal.co.za/article/view/2422
National Credit Act
Constitution
property
arbitrary deprivation
forfeiture
restitution claim
unregistered credit provider
unlawful credit agreement.
en_US
The Constitutional Court in National Credit Regulator v Opperman confirmed the Cape High Court's decision in Opperman v Boonzaaier to declare section 89(5)(c) of the National Credit Act unconstitutional. Therefore, the forfeiture to the state of an unregistered creditor provider's right to claim restitution of monies advanced in terms of an unlawful (and void) credit agreement, was held to amount to an arbitrary deprivation of property in contravention of section 25(1) of the Constitution – the property clause. The provision in effect prohibited courts from deviating from the common law's strict par delictum rule in as far as the effects of unlawful contracts are concerned, the result being that creditors could not retrieve any of the amounts extended to the debtor, despite there being no turpitude or bad faith present. The purpose of this provision was to discourage the concluding of unlawful credit agreements – for instance, agreements concluded by unregistered credit providers – so as to protect consumers against unscrupulous behaviour. Although the broad purposes of the Act are undeniably valid, the Court held that there was no "sufficient reason" for the effects that the Act had in this case, since the credit provider in question was not guilty of the behaviour that the Act tried to combat. In other words, the effects of the Act were over-broad and not proportionate to its stated purposes. This case note comprehensively analyses these decisions in view of interpreting the "confused and confusing" wording of section 89(5)(c), with a specific focus on the application of the section 25(1) non-arbitrariness test. Reference is also made to the earlier judgments in the matter of Cherangani Trade and Investment 107 (Edms) Bpk v Mason. The Opperman decisions illustrate well how the non-arbitrariness test should be conducted in consitutional property cases generally but particularly also in the credit context. Of significance is the fact that the Court for the first time recognised that personal rights sounding in money (an enrichment claim in this instance) should qualify as "property" for constitutional property law purposes. In certain circumstances, therefore, credit regulation may involve deprivation of property such as must satisfy the requirements of the property clause. It is contended that recognising the role of section 25 in the credit context is a positive development that can be explored further. The constitutional provision also calls for lawmakers to draft legislation in such a way that regulatory mechanisms are rational and sufficiently proportionate to its stated goals.
oai:journals.assaf.org.za:article/2425
2019-02-28T08:48:09Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2425
2019-02-28T08:48:09Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 4 (2013); 396-420
Constitutionalising The Right to Legal Representation at CCMA Arbitration Proceedings: Law Society of the Northern Provinces v Minister of Labour 2013 1 SA 468 (GNP)
Peer reviewed article
Selala, Koboro J; North West University(PotchefstroomCampus)
2017-05-17
url:https://perjournal.co.za/article/view/2425
Legal representation
CCMA
Irrational
Constitution
Administrative action
Arbitration.
en_US
Recently, the issue of legal representation at internal disciplinary hearings and CCMA arbitrations has been a fervent topic of labour law discourse in South Africa. While the courts have consistently accepted the common law principle that there is no absolute right to legal representation at tribunals other than courts of law, a study of recent case law reveals that the majority of court judgments seem to be leaning in favour of granting legal representation at disciplinary hearings and CCMA arbitrations than denying it. In the recent case, Law Society of the Northern Provinces v Minister of Labour, the High Court struck down the rule of the CCMA which restricted legal representation at CCMA arbitration as unconstitutional on grounds of irrationality. The High Court considered that the impugned rule was inconsistent with section 3(3)(a) of the Promotion of Administrative Justice Act, which was specifically enacted to give effect to the right to administrative justice entrenched in the Constitution. In so deciding the High Court considered the importance of job security and the possible loss of job by an employee as a serious matter. This case note aims to analyse critically the court’s judgment in Law Society of the Northern Provinces v Minister of Labour and to consider its implications for dispute resolution in South Africa. It is asserted that although the right to legal representation is not absolute at labour proceedings, in light of the court’s decision in Law Society of the Northern Provinces v Minister of Labour it is not easy to identify the circumstances that would provide justification for the infringement of the right at CCMA arbitrations and probably at disciplinary hearings as well. Here, an argument is made suggesting that the court in the Law Society case has taken the right to legal representation too far.
oai:journals.assaf.org.za:article/2440
2019-02-28T08:48:28Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2440
2019-02-28T08:48:28Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 5 (2013); 428-453
Reforming the Multilateral Decision-making Mechanism of the WTO: What is the Role of Emerging Economies?
Peer reviewed article
Saurombe, Amos; University od South Africa
2017-05-17
url:https://perjournal.co.za/article/view/2440
World Trade Organisation
International Trade Reform
Doha Round
Emerging Economies
BRICS
Developing Countries in International Trade.
en_US
The paper focuses on the future of global economic governance in the light of the current state of multilateral trade negotiations. The aim is to analyse identified key historical issues at the heart of the decision-making system of the World Trade Organization (WTO). The current and ongoing Doha Round of trade negotiations and the multilateral system reflect inequalities that still prevail in the global trade architecture. Is there a need for a paradigm shift? The paper will provide recommendations on how reform of the multilateral decision-making structures should focus on promoting the interests of developing countries that have historically been marginalised. Developing countries, like those making up BRICS, stand ready to contribute to the construction of a new international architecture, to bring the voices of the south together on global issues and to deepen their ties in various areas.
oai:journals.assaf.org.za:article/2441
2019-02-28T08:48:28Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2441
2019-02-28T08:48:28Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 5 (2013); 454-486
Creating a Servitude to solve an Encroachment Dispute: A Solution or creating another Problem?
Peer reviewed article
Boggenpoel, Zsa-Zsa Temmers; University of Stellenbosch
2017-05-17
url:https://perjournal.co.za/article/view/2441
Encroachment
Servitude
Reasonableness
Arbitrary deprivation
Property
Roseveare v Katmer
Katmer v Roseveare.
en_US
The main focus of this note is the case of Roseveare v Katmer, Katmer v Roseveare 2013 ZAGPJHC 18, which provides an interesting (though possibly constitutionally problematic) perspective to the encroachment problem. The decision in this case has opened the door for courts to create servitudes in instances where encroachments are left intact based on policy reasons. Concerning these policy reasons, the note investigates the reasonableness standard as it was applied in the case. It is argued that it is important to differentiate between the applications of reasonableness in encroachment cases and alleged nuisance disputes. The decision in this case creates the impression that courts may now order that a servitude be registered in favour of the encroacher against the affected landowner’s property. It seems as though the court had in mind the creation of a praedial servitude to justify the continued existence of the encroachment. The servitude is created by court order against the will of the affected landowner. At common law, the creation of a servitude in this respect does not exist, and the authority from which the power derives to make an order like this is not entirely clear. The court also does not provide any authority for the creation of the servitude in favour of the encroacher. Consequently, it is argued that this may have serious constitutional implications. For one, lack of authority for the deprivation that results may be unconstitutional because there is no law of general application that authorises the deprivation in terms of section 25(1). The creation of a servitude to explain the continued existence of the encroachment is not automatically included in the general discretion to replace removal with compensation. It is contended that an order that forces the affected landowner to register a servitude in favour of the encroacher to preserve the existing encroachment situation will be in conflict with section 25(1) as far as the common law does not authorise such an order. Furthermore, an order creating a servitude against the affected landowner’s will need to be separately justified in terms of the non-arbitrariness requirement in section 25(1). In this respect, the order will be unjustified and therefore arbitrary on both a general and personal level. Although this decision eliminates the enduring problem in encroachment law concerning the rights of the respective parties to the affected land where encroachments are not removed, it is reasoned in this note that the solving of this problem may have created another one. The decision is undoubtedly a step in the right direction, in so far as the court has attempted to provide clarity in terms of the rights to the encroached-upon land. However, the absence of authority either in terms of the common law or legislation to create a servitude in this context, indicates that courts should avoid orders of this nature because of their implications. If legislation is enacted to regulate building encroachments, it may be useful to explain what happens when the encroachment is not removed and it may also provide the required law of general application to prevent constitutional infringement. The legislation should specify the nature of the right acquired by the encroacher, which in the South African context should probably be a servitude created against the affected landowner’s property. This may ensure that the required authority exists for the creation of the servitude and would also provide the necessary justification to prevent the arbitrary deprivation of property. It is accordingly submitted that the unnecessary confusion that results from the inability to explain the outcome (or provide sufficient reason) on the one hand, and the possible constitutional infringement due to the lack of authority on the other, may therefore be cleared up by the suggested legislation.
oai:journals.assaf.org.za:article/2446
2019-02-28T08:48:28Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2446
2019-02-28T08:48:28Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 5 (2013); 487-513
"Originality" and "Reproduction" in Copyright Law with Special Reference to Photographs
Peer reviewed article
Harms, Louis; University of Pretoria
2017-05-17
url:https://perjournal.co.za/article/view/2446
Originality
Reproduction
Copyright Law
Photographs
Artistic Work
Temple Island Collections Ltd v New English Teas Ltd
Sweat- of- the- brow test
en_US
Turning to lessons from foreign jurisdictions, this note explores from a copyright perspective the fact that photographs are produced mechanically and more often than not without any effort or mental input. A minute number are taken for anything but personal use and in the digital age photographs tend to have a high degree of mobility and are also ephemeral and without any commercial value. It is accordingly difficult to justify in general terms copyright protection for photographs. Two of the main legal issues in this context are the criteria for originality and the meaning of the reproduction of a photograph. These two issues form the central point of discussion in this contribution.
oai:journals.assaf.org.za:article/2447
2019-02-28T08:48:28Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2447
2019-02-28T08:48:28Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 5 (2013); 514-553
Unpacking the Right to Plain and Understandable Language in the Consumer Protection Act 68 of 2008
Peer reviewed article
Stoop, Philip N; University of south Africa
Churr, Chrizell; University of South Africa
2017-05-17
url:https://perjournal.co.za/article/view/2447
Plain language (plain and understandable language)
Transparency
Procedural fairness
Consumer rights
Consumer contracts
Contractual fairness
en_US
The Consumer Protection Act 68 of 2008 came into effect on 1 April 2011. The purpose of this Act is, among other things, to promote fairness, openness and respectable business practice between the suppliers of goods or services and the consumers of such good and services. In consumer protection legislation fairness is usually approached from two directions, namely substantive and procedural fairness. Measures aimed at procedural fairness address conduct during the bargaining process and generally aim at ensuring transparency. Transparency in relation to the terms of a contract relates to whether the terms of the contract terms accessible, in clear language, well-structured, and cross-referenced, with prominence being given to terms that are detrimental to the consumer or because they grant important rights. One measure in the Act aimed at addressing procedural fairness is the right to plain and understandable language. The consumer’s right to being given information in plain and understandable language, as it is expressed in section 22, is embedded under the umbrella right of information and disclosure in the Act. Section 22 requires that notices, documents or visual representations that are required in terms of the Act or other law are to be provided in plain and understandable language as well as in the prescribed form, where such a prescription exists. In the analysis of the concept “plain and understandable language” the following aspects are considered in this article: the development of plain language measures in Australia and the United Kingdom; the structure and purpose of section 22; the documents that must be in plain language; the definition of plain language; the use of official languages in consumer contracts; and plain language guidelines (based on the law of the states of Pennsylvania and Connecticut in the United States of America).
oai:journals.assaf.org.za:article/2448
2019-02-28T08:48:28Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2448
2019-02-28T08:48:28Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 5 (2013); 554-580
A Customary Right to Fish when Fish are Sparse: Managing Conflicting Claims between Customary Rights and Environmental Rights
Peer reviewed article
Feris, Loretta; University of Cape Town
2017-05-17
url:https://perjournal.co.za/article/view/2448
Custom
Customary law
Customary rights
Marine resources
Conservation
Environment.
en_US
This contribution considers the potential conflicts that may arise between customary rights and environmental rights in the face of dwindling marine resources. It sets the scene by reflecting on some of the common themes present in indigenous claims to marine resource by communities who were subjected to colonisation. In doing so it analyses the South African judgment, S v Gongqose Case No. E382/10 (unreported), which alluded to the existence of a customary right to fishing, a concept that has until now remained unexplored in South African law. This discussion is followed by a brief overview of the rapidly declining state of marine resources, worldwide and in South Africa. The note then considers the relationship between customary law and marine resources and some of the challenges in meeting rights-based customary claims to marine resources against the need to conserve a dwindling resource. It concludes by offering possibilities for reconciliation.
oai:journals.assaf.org.za:article/2449
2019-02-28T08:48:28Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2449
2019-02-28T08:48:28Z
Faculty of Law, North-West University, South Africa
Vol. 16 No. 5 (2013); 581-614
Race as/and the Trace of the Ghost: Jurisprudential Escapism, Horizontal Anxiety and the Right to be Racist in Boe Trust Limited
Peer reviewed article
Modiri, Joel M; University of Pretoria
2017-05-17
url:https://perjournal.co.za/article/view/2449
BoE Trust Limited
Race
Colour-blindness
Formalism
Horizontal application of the Bill of Rights
Transformative constitutionalism
Critical race legal analysis
White privilege
Constitution of the Republic of South Africa
Private law.
en_US
This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: first, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law. It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for post-apartheid South Africa.
oai:journals.assaf.org.za:article/2469
2019-02-28T08:45:22Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2469
2019-02-28T08:45:22Z
Faculty of Law, North-West University, South Africa
Vol. 15 No. 1 (2012); 391-410
Procurement Adjudication and the Rights of Children: Freedom Stationery (Pty) Ltd v MEC for Education, Eastern Cape 2011 JOL 26927 (E)
Peer reviewed article
Couzens, Meda; University of KwaZulu-Natal
2017-05-22
url:https://perjournal.co.za/article/view/2469
Children
children's rights
the right to education
the best interests of the child
public procurement
procurement adjudication
en_US
Children are heavily reliant on the services provided by the government and irregularities in public procurement processes are bound to affect the realisation of children's rights. In the Freedom Stationery (Pty) Ltd v The Member of the Executive Council for Education, Eastern Cape the Court was urged by the Centre for Child Law acting as an amicus curiae to consider children's right to education and their best interests when deciding on an interim interdict which would result in a delay in the provision of stationery to several schools in the Eastern Cape. This case note contains a summary of the case, some comments on the court's approach to the rights of children in procurement adjudication, and an assessment of the significance of the case for the development of children's rights in South Africa.
oai:journals.assaf.org.za:article/2470
2019-02-28T08:45:22Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2470
2019-02-28T08:45:22Z
Faculty of Law, North-West University, South Africa
Vol. 15 No. 1 (2012); 411-428
Unisa v Reynhardt [2010] 12 BLLR 1272 (LAC): Does Affirmative Action have a Lifecycle?
Peer reviewed article
Mushariwa, Muriel; University of Witwatersrand
2017-05-22
url:https://perjournal.co.za/article/view/2470
Affirmative action
employment equity
designated employer
discrimination
en_US
The Employment Equity Act (EEA) was enacted to achieve equity in the workplace by prohibiting unfair discrimination and by requiring the implementation of affirmative action measures to ensure the adequate representation of designated groups. To ensure compliance with the EEA a designated employer must ensure that it formulates an affirmative action policy within which employment equity targets are stipulated and met. One of the on-going debates around affirmative action is whether it has a life-span. One school of thought argues that affirmative action requires a legislated sunset clause, in which considerations of race, gender and disability will no longer be implemented by employers, instead of which each employer will look to employ a candidate who is suitably qualified for the vacant post. The other school of thought argues that the need for affirmative action is two-fold: to redress past inequalities, but also to deal with existing inequalities within society. Having a sunset clause this would negate the aim of affirmative action to deal effectively with both kinds of inequalities and also the creation of a representative workforce. In the case of UNISA v Reynhardt it was held that once an employer has reached his employment equity targets it is no longer justifiable for it to apply affirmative action, but that the principle to be applied is that the most suitably qualified candidate is to be appointed. The non-application of affirmative action is subject to an employer’s commitment to meeting employment equity targets and a recognition by the employer that once these targets are reached they must be maintained within the organisation. Consequently, once a disparity exists, affirmative action must again be applied, resulting in the imputation of a distinct lifecycle to affirmative action. Failure on the part of the employer to do this would have the potential of creating reverse discrimination against employees who are not the beneficiaries of affirmative action.
oai:journals.assaf.org.za:article/2499
2019-02-28T08:45:49Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2499
2019-02-28T08:45:49Z
Faculty of Law, North-West University, South Africa
Vol. 15 No. 2 (2012); 553-569
Do boards of trustees of South African retirement funds owe fiduciary duties to both the funds and fund members? The debate continues
Peer reviewed article
Marumoagae, Motsotsile Clement; Candidate Attorney, Benoni Justice Centre, Legal Aid South Africa
2017-05-25
url:https://perjournal.co.za/article/view/2499
Retirement Fund
Board of Trustees
Best Interests of Members
Pension Fund Act
Fiduciary Duties
Trusts
en_US
Over the years, the South African retirement fund industry has experienced major regulatory changes. These changes were aimed at imposing a higher standard of governance on the boards of trustees governing various pension funds. As such, there has been a debate within the retirement fund industry as to whom the board, as the governing and managing body of the retirement fund, is accountable. South African courts and tribunals adjudicating pension fund related disputes and the retirement industry at large seem to share the view that the board of trustees is accountable to both the fund and its members. In that the board of trustees owes fiduciary duties to both the fund and its members, meaning that the board is required to act in the best interest of the fund and its members. However, in this paper I demonstrate that the boards of trustees of South African Pension Funds are accountable to and owe fiduciary duties only to the fund they serve and not members of those funds. Furthermore, I submit that at the very best the board owes a duty of good faith towards the members of the fund. In order to substantiate my submissions, I distinguish the legal position relating to trust law from the law relating to retirement funds in South Africa.
oai:journals.assaf.org.za:article/2553
2019-10-14T09:57:57Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2553
2019-10-14T09:57:57Z
Faculty of Law, North-West University, South Africa
Vol. 14 No. 1 (2011); 163-187
Die Wenslikheid van Afrikaans as Vaktaal vir Regstudent
Peer reviewed article
Lombard, Ellen; University of South Africa
Carney, Terrence R; University of South Africa
2017-06-06
url:https://perjournal.co.za/article/view/2553
Regsafrikaans
Anglicisation
language practitioner
law practitioner
language laws
language rights
language of record
language and the legal profession
minority language
language of the court
language and higher functions
en_US
Since 1994 the official language status in South Africa went from two state languages to eleven. This caused English to stand out as the lingua franca of the wider community and resulted in government using English as the preferred medium of communication. This is especially the case in the business of law. The legal practice from the private, public and academic sectors is anglicising at a rapid rate which means that Afrikaans is diminishing as a legal language and that the nine additional official languages are not being developed entirely to function at a higher level. In the light of Anglicisation it begs the question whether it is still useful to teach Afrikaans as a legal language at tertiary institutions. This article explores the matter by focusing on the following: the importance of language within the legal profession, the history of Regsafrikaans, Anglicisation within the legal profession, English as the only language of record and the expediency of Afrikaans as a legal language. The authors arrive at the conclusion that it is indeed still important to teach Regsafrikaans to law students and recommend that law faculties should keep or reinstate this subject as part of their LLB curriculum.
oai:journals.assaf.org.za:article/2554
2019-10-14T10:00:09Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2554
2019-10-14T10:00:09Z
Faculty of Law, North-West University, South Africa
Vol. 14 No. 1 (2011); 188-214
The Suitability of the Remedy of Specific Performance to Breach of A "Player's Contract" with Specific Reference to the Mapoe and Santos Cases
Peer reviewed article
Mould, Kenneth; University of the Free State
2017-06-06
url:https://perjournal.co.za/article/view/2554
Player's contracts
labour law
sports law
law of contract in professional sport
contractual remedies
Vrystaat Cheetahs (Edms) Bpk v Mapoe
en_US
During the 1990s, rugby union formation in the Republic of South Africa developed rapidly from a system of strict amateurism to one of professionalism. Professional participants in the sport received salaries for participation, and rugby became a business like any other. As in all forms of business, rugby had to be regulated more efficiently than had previously been the case. Tighter regulations were instituted by governing bodies, and ultimately labour legislation became applicable to professional rugby. A professional sportsman or woman participating in a team sport is generally considered an employee. This means that the same principles that govern employees in general should also apply to professional sportsmen and women. The exact nature of the "player's contract", a term generally used to describe the contract of employment between a professional sportsman or sportswoman and his or her employer, deserves closer attention. It has been argued with much merit that the "player's contract", while in essence a contract of employment, possesses certain sui generis characteristics. The first aim of this article is to demonstrate how this statement is in fact a substantial one. If it is concluded that the "player's contract" is in fact a sui generis contract of employment, the most suitable remedy in case of breach of contract must be determined. The second aim of this article is to indicate why the remedy of specific performance, which is generally not granted in cases where the defaulting party has to provide services of a personal nature, is the most suitable remedy in case of breach of "player's contracts". To substantiate this statement, recent applicable case law is investigated and discussed, particularly the recent case of Vrystaat Cheetahs (Edms) Beperk v Mapoe. Suggestions are finally offered as to how breach of "player's contracts" should be approached by South African courts in future.
oai:journals.assaf.org.za:article/2555
2019-10-14T10:04:51Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2555
2019-10-14T10:04:51Z
Faculty of Law, North-West University, South Africa
Vol. 14 No. 1 (2011); 215-234
Has the Balance been Struck The Decision in Johncom Media Investments Limited v M 2009 4 SA 7 (CC)
Peer reviewed article
Albertus, Latiefa; University of Witwatersrand
2017-06-06
url:https://perjournal.co.za/article/view/2555
Section 12 of the Divorce Act
right to freedom of expression
right to privacy
Law Reform Commission Report
en_US
The case of Johncom Media Investments Limited v M 2009 4 SA 7 (CC) required of the Constitutional Court to strike a balance between the rights to privacy and the right to freedom of expression as a consequence of section 12 of the Divorce Act 70 of 1979. According to the Court, it felt that the "remedy" it provided was the best under the circumstances. However, there are certain concerns regarding the Court’s judgment which require clarification, possibly through legislative intervention
oai:journals.assaf.org.za:article/2567
2019-10-15T08:26:38Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2567
2019-10-15T08:26:38Z
Faculty of Law, North-West University, South Africa
Vol. 14 No. 2 (2011); 170-180
The Appellate Division has spoken – Sequestration Proceedings do not Qualify as Proceedings to Enforce a Credit Agreement under The National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 4 SA 597 (SCA)
Peer reviewed article
Maghembe, Ngwaru; University of Pretoria
2017-06-06
url:https://perjournal.co.za/article/view/2567
Credit agreement
credit provider
consumer
National Credit Act
sequestration
en_US
This case note aims to analyse the decision of the Supreme Court of Appeal in Naidoo v ABSA Bank 2010 4 SA 597 (SCA) and to spark some debate as to whether being under debt review in terms of the National Credit Act (NCA) should bar sequestration proceedings in the form of an application for the compulsory sequestration of a consumer’s estate. This decision held that a credit provider does not need to comply with the procedure provided for in section 129(1) of the NCA before instituting sequestration proceedings against a debtor, as such proceedings are not proceedings to enforce a credit agreement. The main issues discussed in this article are whether the court was correct in its interpretation of the relevant provisions of the NCA and whether this decision that allows a creditor to sequestrate a debtor who is attempting to meet his/her obligations under debt review, without informing him/her, is consistent with the principle urging consumers to satisfy all of their financial obligations under the NCA. It is submitted by the author that the court was correct in its interpretation of the relevant provisions of the NCA, but may have overlooked how this decision may impact the principle of satisfaction by the consumer of all of his/her financial obligations. It is suggested by the author that amendments be made to force the creditor to give a section 129 notice to the debtor before seeking sequestration of his/her estate. The author also suggests that once debt restructuring has been granted, credit providers should not be allowed to proceed with sequestration proceedings against the debtor.
oai:journals.assaf.org.za:article/2568
2019-10-15T08:40:56Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2568
2019-10-15T08:40:56Z
Faculty of Law, North-West University, South Africa
Vol. 14 No. 2 (2011); 181-205
Commercial Appropriation of a Person's Image: Wells V Atoll Media (Pty) Ltd (Unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009)
Peer reviewed article
Cornelius, Steve; University of Pretoria
2017-06-06
url:https://perjournal.co.za/article/view/2568
Identity
image rights
publicity rights
personality rights
delict
tort
en_US
Our modern society has become transfixed with celebrity. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous. This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against the unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty). The judgment in Wellshas redefined the right to identity and provided some clarity on what the infringement of that right would amount to. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed upon if the attributes of that person are used without permission in a way which cannot be reconciled with the true image of the individual concerned, if the use amounts to the commercial exploitation of the individual, if it cannot be reconciled with generally accepted norms of decency, or if it violates the privacy of that person.
oai:journals.assaf.org.za:article/2569
2019-10-15T08:54:30Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2569
2019-10-15T08:54:30Z
Faculty of Law, North-West University, South Africa
Vol. 14 No. 2 (2011); 206-226
The Enforceability of Illegal Employment Contracts according to the Labour Appeal Court Comments on Kylie v CCMA 2011 4 SA 383 (LAC)
Peer reviewed article
Selala, Kobolo J; North West University(Potchefstroom Campus)
2017-06-06
url:https://perjournal.co.za/article/view/2569
Employee
jurisdiction
sex workers
dismissal
sex industry
fair labour practice
en_US
The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to resolve the dispute on the basis that the employee’s contract of employment was invalid and therefore unenforceable in law. The Labour Appeal Court, on the other hand, overturned the Labour Court’s decision and held that the CCMA has jurisdiction to resolve the dispute, regardless of the fact that sex work is still illegal under the South African law. For this decision, the Labour Appeal Court relied on section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices. According to the Labour Appeal Court the crucial question for determination by the court was if a person in the position of a sex worker enjoyed the full range of constitutional rights including the right to fair labour practices. In the court’s reasoning the word everyone in section 23(1) of the Constitution is a term of general import and conveys precisely what it means. In other words everyone, including a sex worker, has the right to fair labour practices as guaranteed in the Constitution. A critical analysis of the judgment is made in this case note. The correctness of the court’s judgment, particularly insofar as it relates to the approach to and the determination of the issue of jurisdiction, is questioned. It is argued that the Court lost focus on the main issue in the appeal, namely jurisdiction, and instead proceeded to place heavy emphasis on the employee’s constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect - hence its decision. Given the critical importance of the matter, and the attendant implications of the judgment for labour litigation in South Africa, it is hoped that a similar case will soon come to the attention of a superior court and that a definitive pronouncement will be made.
oai:journals.assaf.org.za:article/2621
2019-10-21T13:14:19Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2621
2019-10-21T13:14:19Z
Faculty of Law, North-West University, South Africa
Vol. 14 No. 7 (2011); 173-185
The Devil is in the Definition – Definitions and their Limited Use in Legal Problem Solving
Peer reviewed article
Brimer, David; Schindlers
Brimer, Alan; University of KwaZulu-Natal
2017-06-09
url:https://perjournal.co.za/article/view/2621
Definitions in law
essences
positivism
flux
words
meanings
en_US
The lawyer’s usual attempt to catch the meaning of a thing by entangling it in a net of words is based on a common misapprehension of the way words work. The great minds of the ages have since time immemorial reminded us that words do not contain essences, that meanings are social constructs, and that the relation between words and meanings is slippery at best. Definitions presuppose that words have simple meanings attached to them in something like a one-to-one relationship, which is why the law can sometimes be so obtuse. It is the use of the law in a tribunal that provides the eventual understanding of how the law works. Decisions handed down in courts are embedded in a particular time and a particular set of circumstances and are the products of minds informed by a set of social experiences which other lawyers accept as qualifying those particular persons to pronounce on the law. Our legislature would do well when framing legislation to imitate those who drafted the Constitution of the Republic of South Africa, 1996 which is sufficiently specific, without the support of pages of definitions, to lead to very precise argument in the Constitutional Court, and yet sufficiently general to allow the law to develop with the flux of time.
oai:journals.assaf.org.za:article/2631
2019-10-22T10:08:38Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2631
2019-10-22T10:08:38Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 1 (2010); 170-189
The Binding Effect of the Constitutive Documents of Companies: The 1973 and 2008 Companies Acts of South Africa
Peer reviewed article
Morajane, Tebogo; University of Pretoria
2017-06-14
url:https://perjournal.co.za/article/view/2631
Constitutive documents
Memorandum of Incorporation
Notice of Incorporation
binding effect of constitutive documents
legal nature of constitutive documents
en_US
This contribution examines the provisions of the constitutive documents of companies under two specific provisions, namely s 65(2) of the Companies Act 61 of 1973 and s 15(6) of the Companies Act 71 of 2008. The aim is to determine who is bound by these provisions, the circumstances which give rise to being bound by them, and the possible effect thereof on various parties.
The provisions of the constitutive documents under section 65(2) of the 1973 Companies Act are interpreted by courts and academic writers to amount to a statutory contract between a company and its members and between members inter se. The members are said to be bound by the provisions of these documents only in their capacity as members. It is submitted, however, that the rights and obligations are granted to members in their capacity as such if they are membership rights which are granted by virtue on one’s membership.
So far the courts have failed to provide a logical explanation of the concept “capacity of a member as such”. This failure and the “qua membership test” resulted in limitations in the interpretation of section 65(2): for example, the exclusion of persons who are regarded as outsiders. The directors, despite the fact that numerous provisions of the applicable article provides for their rights, have rights that are unenforceable via the articles, for being regarded as outsiders. The company on the other hand can enforce the obligations against the directors on the basis of breach of their fiduciary duties. These limitations called for a redraft of section 65(2).
This contribution raises the legal challenges raised by the above. It arrives inter alia at the conclusion that the “qua membership test” may find application under the 2008 Companies Act, since members/shareholders may be allowed to exercise rights that are membership rights granted to them by virtue of their membership, and directors may be allowed to exercise rights that are granted to them in their official capacities as such.
oai:journals.assaf.org.za:article/2632
2019-10-23T08:50:28Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2632
2019-10-23T08:50:28Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 1 (2010); 190-212
A Brief Overview of the Civil Union Ac
Peer reviewed article
Ntlama, Nomthandazo; North West University(Potchefstroom Campus)
2017-06-14
url:https://perjournal.co.za/article/view/2632
same-sex marriages
civil union
equality
constitutional rights
constitutional protection of homosexual relationships
Civil Union Act
en_US
The adoption of the Constitution of the Republic of South Africa, 1996 (the Constitution) has provided a sound framework for the elimination of discrimination and prejudice against all members of our society. The Constitution provides for equal recognition of the right to freedom of religion and sexual orientation within the framework of the right to equality. This note aims to provide a brief overview and analysis of the general and potentially problematic features of the Civil Union Act 17 of 2006 (the Act) in the context of equality, generally and within realm of the constitutional protection afforded to everyone in South Africa. This contribution is limited to an examination of the quality of the legal protection accorded to same-sex couples as envisaged in the Act, and not to an analysis of the nature of the institution of marriage itself or the theological and social dimensions of same-sex marriages.
oai:journals.assaf.org.za:article/2636
2019-10-23T09:20:22Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2636
2019-10-23T09:20:22Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 1 (2010); 213-234
Parallel Planning Mechanisms as a "Recipe for Disaster"
Peer reviewed article
van Wyk, Jeannie; University of South Africa
2017-06-14
url:https://perjournal.co.za/article/view/2636
Planning law
land-use planning
land development areas
township development
urban planning and development
municipal planning
en_US
This note offers a critical reflection of the recent landmark decision in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal which lay to rest the negative consequences of employing the DFA procedures of the Development Facilitation Act 67 of 1995 (DFA) alongside those of the provincial Ordinances to establish townships (or to use DFA parlance, “land development areas”). The welcome and timely decision in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal has declared invalid chapters V and VI of the DFA. Moreover, it has formalised planning terminology in South Africa, delineated the boundaries of “municipal planning” and “urban planning and development” as listed in Schedules 4 and 5 of the Constitution of the Republic of South Africa, 1996 and, in the process, clarified the structure of planning law. This note examines the decision of the SCA and focus on the role it will clearly have in reforming some of the law relating to planning. It considers the facts of the case, uncertainties around terminology, the structure of planning in South Africa, the content of municipal planning, the role of the DFA and the consequences of the declaration of invalidity by the SCA.
oai:journals.assaf.org.za:article/2646
2019-10-28T10:31:35Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2646
2019-10-28T10:31:35Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 2 (2010); 162-181
How Could the Pension Funds Adjudicator Get it so Wrong A Critique of Smith v Eskom Pension and Provident Fund
Peer reviewed article
Dyani, Ntombizozuko; University of the Witwatersrand
Mhango, Mtendeweka Owen; University of the Witwatersrand
2017-06-15
url:https://perjournal.co.za/article/view/2646
Pension Funds Act
Pension Funds Adjudicator
cohabitation
marriage
spouse
dependants
mutual dependency
spouse’s benefit
pension fund rules
women’s rights.
en_US
In this case note the judgment in the Smith case is criticized for being inconsistent with the landmark ruling in Volks. It is argued that the Adjudicator ought to have remanded the matter in Smith to the Board and ought to have ordered it to re-examine its discretion with a focus on a set of factors. Some of the negative effects of Smith on the pension funds industry are also outlined. While the authors express their understanding that the Adjudicator's decision in Smith was made with the rights of women in mind, they believe that her reasoning was wrong. She may have arrived at the same decision on different reasoning. In order to prevent the negative effects of Smith on the pension funds industry, it is recommended that the Adjudicator, when given an opportunity, should overrule the precedent set in Smith. Failure to do so would create the risk of the inconsistent application of the term "spouse" under South African law, or at the very least in relation to acts of Parliament administered by the National Treasury, which may potentially violate the equality provisions of the Constitution.
oai:journals.assaf.org.za:article/2647
2019-10-28T10:48:47Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2647
2019-10-28T10:48:47Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 2 (2010); 182-204
What Should the Board of Management of a Pension Fund Consider when Dealing with Death Claims Involving Surviving Cohabitants
Peer reviewed article
Mhango, Mtendeweka Owen; University of Witwatersrand
2017-06-15
url:https://perjournal.co.za/article/view/2647
Pension Funds Act
pension fund member
death claims
factual dependants
mutual dependency
emotional and intimate or sexual bond
surviving cohabitants
spouse
dominant-servient test
factual dependency test
en_US
This note argues that the Adjudicator’s determination Hlathi should be welcomed by the pension funds industry because it clarifies the uncertain legal position that emerged in the wake of the judgment in Volks. It comments on the requirements in and implications of Hlathi for the pension funds industry and pension beneficiaries, and criticises the Adjudicator's determination as failing to expressly incorporate the emotional and intimate or sexual bond requirement in the new factual dependency test. It argues that while Hlathi appears to have reverted to the legal position that prevailed prior to Van der Merwe, the new test does not expressly incorporate the relevant requirement that a relationship of mutual dependence involves an emotional and intimate or sexual bond. As a result, the note is critical of this omission because it creates a potentially new uncertainty in the law, and calls on the current Adjudicator to clarify this matter.
oai:journals.assaf.org.za:article/2694
2019-10-30T08:42:02Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2694
2019-10-30T08:42:02Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 3 (2010); 448-466
Jordan v Farber (1352/09) 2009 ZANCHC 81 (15/12/2009)
Peer reviewed article
Barnard, Jacolien; University of Pretoria
Nagel, Chris; University of Pretoria
2017-06-19
url:https://perjournal.co.za/article/view/2694
Attorney
breach of contract
cancellation of contract
conflict of interests
damages
enrichment
fraudulent misrepresentation
letting and hiring
matrimonial property
public policy
undue influence.
en_US
This case note deals with several aspects of the law of contract, such as public policy and validity, error, cancellation, repudiation, undue influence and damages. It concerns the case of an elderly couple who had to stop their farming operations because of ill health. The attorney whom they approached for assistance offered to lease the farm, equipment and animals from them in his personal capacity, although in his professional capacity he also drafted the contracts of lease. It later transpired that the attorney used his position to mislead the couple as regards the contracts in question and that he was guilty of unethical and unprofessional conduct. The couple applied to court to have the leases declared void, alternatively cancelled, and to have the attorney evicted from the farm. The order was granted; however, the discussion seeks to demonstrate that the couple were afforded only minimal justice in that they did not claim, nor were they granted, any damages. The various possibilities open to them in the circumstances are examined and the conclusion is that ventilating the matter by way of application was probably not the best manner in which to have sought assistance.
oai:journals.assaf.org.za:article/2695
2019-10-29T06:40:59Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2695
2019-10-29T06:40:59Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 3 (2010); 467-492
The South African constitutional Court and the Rule of Law: The Masethla Judgment, A Cause for Concern
Peer reviewed article
Krüger, Rósaan; Rhodes University
2017-06-19
url:https://perjournal.co.za/article/view/2695
Rule of law
founding values
executive power
procedural fairness
legality
rationality
non-arbitrariness
Masethla
pharmaceutical manufacturers.
en_US
The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa,[1] the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments.
oai:journals.assaf.org.za:article/2696
2019-10-30T09:06:46Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2696
2019-10-30T09:06:46Z
Faculty of Law, North-West University, South Africa
Vol. 13 No. 3 (2010); 493-508
Plagiarism: Misconduct Awareness on Novice Research within the Cyberworld
Peer reviewed article
Lehobye, Nafta Mokate; Tshwane University of Technology
2017-06-19
url:https://perjournal.co.za/article/view/2696
Copyright
novice authorship
plagiarism
cyber-digital environment
fair-use doctrine
legal protectionism
legal certainty
plagiarism.
en_US
More often than not, there exists some form of infringement relating to the use of other authors' work. This is particularly so in instances in which novice authors make use of the information available within the cyber-digital environment. The article explains the meaning of plagiarism and describes the many manifestations thereof, with the primary aim of providing guidance to novice authors.
oai:journals.assaf.org.za:article/2737
2019-11-07T10:59:43Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2737
2019-11-07T10:59:43Z
Faculty of Law, North-West University, South Africa
Vol. 12 No. 3 (2009); 135-161
The Role of Traditional Authorities in Developing Customary Laws in Accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)
Peer reviewed article
Mmusinyane, B; University of South Africa
2017-06-26
url:https://perjournal.co.za/article/view/2737
en_US
South African customary law is a body of law by which many South Africans regulate their lives in a multicultural society. South Africa's constitutional dispensation is based on the premise that all existing laws are subject to the Constitution of the Republic of South Africa 1996, including African customary law, and that all laws are limited only by the Constitution. Customary law existed long before the adoption of the Constitution which, among other things, aims at harmonising the different cultural practices that exist in the country. It is apparent that some traditional cultural practices that still exist are in conflict with the Constitution but, until they are challenged before a court of law, they will remain enforceable in our communities. This contribution investigates customary systems of succession that are guided by the principle of male primogeniture: a deceased's heir is his eldest son, failing which, the eldest son's oldest male descendant is his heir. The discussion focuses in particular on the case of Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). This case concerns an application to the Constitutional Court for a leave to appeal against a decision of the Supreme Court of Appeal substantially confirming a decision of the Pretoria High Court that prevented a woman from being a Hosi (traditional leader) of her own community
oai:journals.assaf.org.za:article/2748
2019-11-06T12:23:43Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2748
2019-11-06T12:23:43Z
Faculty of Law, North-West University, South Africa
Vol. 12 No. 4 (2009); 332-360
Marimuthu Munien V BMW Financial Services (SA) (PTY) LTD Unreported Case No 16103/08 (KZD)
Peer reviewed article
van Heerden, Corlia; University of Pretoria
Coetzee, Hermie; University of Pretoria
2017-06-26
url:https://perjournal.co.za/article/view/2748
National Credit Act
Munien
debt enforcement
notice
delivery
section 129
en_US
Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the NCA) provides that, as a required procedure before debt enforcement, a credit provider must draw the default to the consumer's notice in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date. Even though section 129(1)(a) is silent as to the method by which the default should be brought to the consumer's notice, section 130(1)(a) provides clarity by requiring the section 129(1)(a) notice to be delivered. It appears that a credit provider who fails to comply with the provisions of section 129(1)(a) prior to debt enforcement by means of litigation will be in a procedural predicament as the credit provider will not possess a complete cause of action thus, for instance, rendering the summons excipiable. The crucial question thus appears to be whether or not in a given situation one may say that there was proper compliance with section 129(1)(a) as this directly affects the existence or absence of a complete and proper cause of action. A number of factors has to be considered in order to address this question, the most important being if the section 129(1)(a) notice was duly 'delivered'. In this regard two questions are especially relevant: a) When exactly can it be said that a section 129(1)(a) notice was 'delivered' for purposes of the NCA? b) Is it necessary for such notice to be received by the consumer in order to constitute proper compliance with the delivery requirement pertaining to section 129(1)(a)? The above questions were decided on in a recent judgment, Marimuthu Munien v BMW Financial Services (SA) (Pty) Ltd Case no 16103/08 (KZD) (unreported). This article will analyse section 129(1)(a) of the NCA by inter alia considering the above questions against the backdrop of the particular decision.
oai:journals.assaf.org.za:article/2821
2019-11-18T13:18:46Z
per:Note
driver
v2
https://perjournal.co.za/article/view/2821
2019-11-18T13:18:46Z
Faculty of Law, North-West University, South Africa
Vol. 9 No. 2 (2006); 176-197
The Role Played by the South African Human Rights Commission's Economic and Social Rights Reports in Good Governance in South Africa
Peer reviewed article
Horsten, D; North West University(Potchefstroom Campus)
2017-07-10
url:https://perjournal.co.za/article/view/2821
en_US
The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights.
Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable.
The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.
oai:journals.assaf.org.za:article/3477
2019-10-18T06:07:39Z
per:Note
driver
v2
https://perjournal.co.za/article/view/3477
2019-10-18T06:07:39Z
Faculty of Law, North-West University, South Africa
Vol. 21 (2018); 1-21
Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?
Peer reviewed article
Dugard, Jackie; School of Law, University of the Witwatersrand
2018-08-28
url:https://perjournal.co.za/article/view/3477
Housing rights
non-feasible eviction
effective remedy
judicial expropriation
en_US
This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).
oai:journals.assaf.org.za:article/4166
2019-04-23T08:01:31Z
per:Note
driver
v2
https://perjournal.co.za/article/view/4166
2019-04-23T08:01:31Z
Faculty of Law, North-West University, South Africa
Vol. 20 (2017); 1-31
An Employer's Recourse to Lock-Out and Replacement Labour: An Evaluation of Recent Case Law
Peer reviewed article
Botha, Monray Marsellus; University of Pretoria
Lephoto, Motsoane; North-West University
2017-12-07
url:https://perjournal.co.za/article/view/4166
Collective bargaining
Industrial relations
strikes
Defensive and offensive lockouts
Pickets
Replacement (scab) labour
en_US
South African labour affairs are in a volatile state. Conflicting rights and interests as well as the balancing of these rights and interests are contributing to this state of affairs. In recent years, the contentious issues of workers' right to use their economic power to put pressure on employers and employers' recourse to lock-out and replacement labour have come under the spotlight again. Prolonged, violent and unprotected strikes have raised the question whether our industrial relations framework should be revisited, and have complicated matters even further. The question whether employers may use replacement labour and have recourse to lock-outs when an impasse exists during wage negotiations has come to the fore again and is evaluated in the context of the adversarial collective bargaining framework in South Africa.
oai:journals.assaf.org.za:article/4168
2019-04-23T08:13:40Z
per:Note
driver
v2
https://perjournal.co.za/article/view/4168
2019-04-23T08:13:40Z
Faculty of Law, North-West University, South Africa
Vol. 20 (2017); 1-21
South Africa's Debut into Broadcasting Criminal Trials – The Legal Arguments in Televising the Oscar Pistorius Trail
Peer reviewed article
James, Alison Amanda; Advocate of the High Court of South Africa
2017-12-05
url:https://perjournal.co.za/article/view/4168
Oscar Pistorius
Criminal trial
Television broadcasting
Constitutional rights
Public interest
Administration of justice
Freedom of the press
Fair trial
en_US
The televising and/or any other form of broadcasting of judicial hearings and of criminal trials in particular is a controversial topic that has not only provoked debate and been argued about by academics, the media and the public for years, but continues to be argued about with few signs of abatement. Until recently South Africa had largely escaped becoming embroiled in this provocative topic, as the live broadcasting of criminal trials from South African courtrooms did not occur. The situation has changed, though, following the recent live televising of a full criminal trial – namely, the trial of South African Para-Olympic champion Oscar Pistorius. Given that this trial signalled South Africa's debut into the world of the live televising of criminal trial proceedings, the question is asked why exactly South Africa ventured into this contentious legal territory.It must be emphasised that the intention of this contribution is solely to explore the court's consideration of the constitutional mandates and rights that were contained in both the application and the opposing arguments pertaining to the live broadcast the trial of Oscar Pistorius. This note will not attempt to examine or even approach the far greater question of whether criminal trials should be televised or not, a topic better left to future research.
oai:journals.assaf.org.za:article/4268
2019-10-18T06:07:30Z
per:Note
driver
v2
https://perjournal.co.za/article/view/4268
2019-10-18T06:07:30Z
Faculty of Law, North-West University, South Africa
Vol. 21 (2018); 1-25
The Scope of the Powers of the Minister of Finance in Terms of Section 48(1)(b) of the Customs and Excise Act 91 of 1964: An Appraisal of Recent Developments in Case Law
Peer reviewed article
Vinti, Clive; The University of the Free State
2018-09-14
url:https://perjournal.co.za/article/view/4268
Custom duties
request
discretion
expedient
public interest
separation of powers
ministerial powers
en_US
This paper evaluates the scope of the powers of the Minister of Finance upon a request from the Minister of Trade and Industry to amend Schedule 1 to the Customs and Excise Act 91 of 1964 (hereafter, CEA) in respect of imported goods as provided by section 48(1)(b) of the CEA. This assessment entails a case analysis of the High Court decisions in South Africa Sugar Association v the Minister of Trade and Industry 2017 4 All SA 555 (GP) and Pioneer Foods (Pty) Ltd v Minister of Finance 2017 ZAWCHC 110 (29 September 2017). These two cases offer for the first time, clarification on the nature of the power conferred on the Minister of Finance by section 48(1)(b) of the CEA. The High Court in these two cases rejected the argument that the role of the Minister of Finance in respect of the power conferred upon him/her by section 48(1)(b) is that of a "registrar" who merely 'rubberstamps' the decision of the Minister of Trade and Industry. Consequently, the High Court in both matters held that a veto power is conferred on the Minister of Finance which permits him/her to either accept or decline the request of the Minister of Trade and Industry to amend Schedule 1 of the CEA.To the contrary, this paper argues that if the Minister of Finance declines the request of the Minister of Trade and Industry, s/he is not 'giving effect' to the request of the Minister of Trade and Industry as required by section 48(1)(b) of the CEA and is thus acting ultra vires because s/he is assuming powers which never conferred on him/her by the legislature. This paper also argues that the High Court in both matters, misconstrued the relationship between section 48(1)(b) and the "public interest" provisions in section 48 and thus unjustifiably stripped the Minister of Trade and Industry of his/her power to implement an amendment to Schedule 1. In the final analysis, this paper explores the impact of the Customs Duty Act 30 of 2014 on the Minister of Finance's powers in this regard.
oai:journals.assaf.org.za:article/4506
2020-01-08T10:27:41Z
per:Note
driver
v2
https://perjournal.co.za/article/view/4506
2020-01-08T10:27:41Z
Faculty of Law, North-West University, South Africa
Vol. 22 (2019); 1-17
The South African Class Action Mechanism: Comparing the Opt-In Regime to the Opt-Out Regime
Peer reviewed article
Broodryk, Theo; Stellenbosch University
2019-05-20
url:https://perjournal.co.za/article/view/4506
Class action
joinder
notice
opt-in
opt-out
res judicata
en_US
In Mukaddam v Pioneer Food (Pty) Ltd 2013 2 SA 254 (SCA), Nugent JA stated that, once the class is confined to claimants who choose positively to advance their claims and are required to come forward for that purpose, he can see no reason why they are not capable of doing so in their own names through joinder – they do not need a representative to do so on their behalf. The members who choose to opt in to the class action will thus be identifiable. If that is the case then, according Nugent JA, joinder may be the appropriate procedural device. A problem evidenced by this approach is accordingly that, by suggesting that joinder is the appropriate procedural device where all the claimants are identifiable, rather than a class action, the court essentially attacked the viability of the opt-in regime of class action litigation.
The preferential treatment afforded by our courts to the opt-out class action regime is further reinforced by the finding of Nugent JA that the opt-in class action regime can be utilised only in exceptional circumstances. As exceptional circumstances had not been proved, he found that a class action was not the most appropriate way to pursue the claims. He accordingly suggested that joinder was a viable option to pursue the claims.
The opt-in class action regime requires individual class members to take positive steps to participate in the class action. In other words, class members are required to come forward and opt into the class action, failing which they will not be bound by or benefit from the outcome of the litigation. Support for the opt-in regime is essentially premised on the belief that individuals who are unaware of the litigation should not be bound by its outcome. The opt-out class action regime, on the other hand, automatically binds members of the class to the class action and the outcome of the litigation unless the individual class members take steps to opt out of the class action. Support for the opt-out regime is essentially based on the view that the opting-in requirement could undermine one of the primary purposes of class action litigation, which is to facilitate access to justice.
The Constitutional Court in Mukaddam v Pioneer Foods (Pty) Ltd 2013 5 SA 89 (CC) held that Nugent JA was wrong to find that an applicant in an opt-in class action is required to show exceptional circumstances. However, the court did not provide reasons for its disagreement. The issue relating to exceptional circumstances in opt-in class actions was dealt with in two sentences. The Constitutional Court also failed to deal with the nature and status of the opt-in class action compared with opt-out class actions in South African law.
The note will accordingly consider when, if at all, it is appropriate to use the opt-in class action regime compared to the opt-out class action regime.
oai:journals.assaf.org.za:article/5974
2020-01-08T10:22:46Z
per:Note
driver
v2
https://perjournal.co.za/article/view/5974
2020-01-08T10:22:46Z
Faculty of Law, North-West University, South Africa
Vol. 22 (2019); 1-21
Notes on the Proposed Amendment of Section 21 of the Children's Act 38 of 2005
Peer reviewed article
Heaton, Jacqueline; UNIVERSITY OF SOUTH AFRICA
2019-09-03
url:https://perjournal.co.za/article/view/5974
child law
unmarried father
acquisition of parental responsibilities and rights.
en_US
In terms of section 21 of the Children's Act 38 of 2005, an unmarried father acquires full parental responsibilities and rights in respect of his child if he lives with the child's mother in a permanent life-partnership when the child is born. He also acquires full parental responsibilities and rights if, regardless of whether or not he has ever lived with the child's mother, he consents or successfully applies to be identified as the child's father or pays damages in terms of customary law, and contributes or attempts in good faith to contribute to the child's upbringing and maintenance for a reasonable period. Several provisions of section 21 are unclear and/or unsatisfactory. The draft Children's Amendment Bill, 2018 seeks to address problematic aspects of the section. Unfortunately, the proposed amendments to section 21 leave one disappointed. Although some of the amendments are welcome, the draft Bill fails to address several of the uncertainties flowing from the current wording of section 21 and even creates additional uncertainties. The wording of many of the amendments has not been properly thought through, and the draft Bill fails to address the key question of whether the requirements in section 21(1)(b) operate conjunctively or independently.
oai:journals.assaf.org.za:article/6217
2020-01-20T07:14:09Z
per:Note
driver
v2
https://perjournal.co.za/article/view/6217
2020-01-20T07:14:09Z
Faculty of Law, North-West University, South Africa
Vol. 23 (2020); 1-20
The in Vitro Embryo and the Law: The Ownership Issue and a Response to Robinson
Peer reviewed article
Thaldar, Donrich; University of KwaZulu-Natal, Durban.
2020-01-17
url:https://perjournal.co.za/article/view/6217
Embryo
moral status
legal status
ownership
artificial fertilisation
en_US
In 2012 the Minister of Health made the Regulations Relating to the Artificial Fertilisation of Persons, which provide that the woman who intends to be made pregnant with an in vitro embryo owns such an embryo and can control the embryo's fate in specified ways. Given that in vitro embryos are outside the woman's body, the rationale for these provisions cannot be to protect the woman's bodily integrity. These provisions are, however, problematic from a constitutional perspective, as they: exclude fathers across the board, and impede the right of all intended parents who will not gestate the pregnancy, like surrogacy commissioning parents, to make decisions regarding reproduction – which include the right not to reproduce and hence to veto the further use of an in vitro embryo for reproductive purposes. Robinson argues that the legislative intent with the 2012 Regulations was not to establish ownership of in vitro embryos, and that in vitro embryos are not legal objects (or subjects), but rather form part of the legal subjectivity of their parents. I respond that the language used in the relevant provision is plain and clear in establishing ownership of in vitro embryos, and that in vitro embryos are therefore legal objects. I further suggest that Robinson's proposition of in vitro embryos forming part of the legal subjectivity of their parents may address the gender equality concern with the 2012 Regulations, but that it in turn causes other problems. In particular, Robinson's rationale for his proposition is problematic, as it appears to conflate the embryo with the prospective child. I rely on the important recent judgment in Ex Parte KAF 2019 2 SA 510 (GJ) that held explicitly that the in vitro embryo should not be equated with the prospective child. Finally, I respond to Robinson's critique of my 2005 article, by clarifying the research questions and answers of that article. I highlight the importance of the moral status of the in vitro embryo to legal and ethical debates relating to the in vitro embryo, and invite academic debate on the topic.
oai:journals.assaf.org.za:article/6237
2020-03-18T13:14:05Z
per:Note
driver
v2
https://perjournal.co.za/article/view/6237
2020-03-18T13:14:05Z
Faculty of Law, North-West University, South Africa
Vol. 23 (2020); 1-19
A Note on Sentencing Practices for the Offence of the Unlawful Possession of Semi-Automatic Firearms
Peer reviewed article
Du Toit, Pieter Gerhardus; NORTH-WEST UNIVERSITY
2020-03-17
url:https://perjournal.co.za/article/view/6237
Minimum sentencing
semi-automatic firearm
substantial
compelling circumstances
en_US
Violent crimes in South Africa are often accompanied by the possession or use of semi-automatic firearms. The Criminal Law Amendment Act 105 of 1997 (the CLA) provides for the imposition of minimum sentences for certain firearms-related offences. The question whether the minimum sentencing regime actually applies to the offence of the unlawful possession of a semi-automatic firearm has led to a number of conflicting judicial decisions by different High Courts. This note discusses the statutory interpretation challenges the courts had to grapple with regarding the interplay between the CLA and South Africa's successive pieces of firearms legislation. The Supreme Court of Appeal ultimately found that the offence of the unlawful possession of a semi-automatic firearm must indeed be met with the prescribed minimum sentence. The recent sentencing practices of South African courts in respect of the unlawful possession of semi-automatic firearms within the framework of the CLA are analysed. From the investigation it is evident that courts are more likely to impose the minimum sentence in cases where the accused is also convicted of other serious offences such as murder and robbery. In such cases little attention is given to the firearm-related offences as the courts are more concerned with the cumulative effect of the sentences imposed on different counts. In cases where the accused is convicted of the stand-alone offence of the unlawful possession of a semi-automatic firearm, the courts are nevertheless taking an increasingly unsympathetic stance towards offenders, and terms of imprisonment in the range of 7 to 10 years are commonly imposed. In addition to the accused's personal circumstances, one of the most important factors in deciding on an appropriate sentence is the explanation of how the unlawful possession came about. It seems that the judicial sentiment increasingly does not support the view that the possession of an unlicensed firearm should be treated as serious only if the weapon has been used for the commission of a serious crime.
oai:journals.assaf.org.za:article/6386
2020-01-08T10:15:52Z
per:Note
driver
v2
https://perjournal.co.za/article/view/6386
2020-01-08T10:15:52Z
Faculty of Law, North-West University, South Africa
Vol. 22 (2019); 1-24
The Question is "Should Insurers Continuously Update Policyholder Records"? Insurance Law Requires the Principles of Administrative Law to Settle Disputes between the Policyholder and the Insurer
Peer reviewed article
Kilian, Neels; Faculty of Law, NWU
2019-10-25
url:https://perjournal.co.za/article/view/6386
Financial Services Tribunal
Insurance
FAIS Ombud
OSTI
fraud
public function
policy holder records
reconsideration
insurance law
Financial Sector Regulation Act
duty of disclosure
en_US
It is possible to argue that the Financial Advisory Intermediary Services Ombud (hereafter FAIS Ombud) has jurisdiction to consider insurer's decisions not to update their internal administrative systems. The FAIS Ombud may therefore investigate such matters as a complaint as defined in section 1 of the Financial Advisory and Intermediary Services Act 37 of 2002 (hereafter the FAIS Act). On the other hand, upon any failure to investigate such complaints, the complainant may approach the Financial Services Tribunal, either to give directions to the FAIS Ombud regarding how to investigate the complaint or to replace this failure with the Tribunal's own investigation/reconsideration of a decision as regulated in section 8 of the Promotion of Administrative Justice Act 3 of 2000 (hereafter the PAJA). An administrative decision is defined in the Financial Sector Regulation Act 9 of 2017 (hereafter the FSRA) which includes the statutory ombud (example, FAIS Ombud) decisions, such as a decision not to investigate a complaint. When an insurer's decision is in fact an administrative decision, reference should also be made to the FSRA, i.e. an insurer's decision to debar an employee/representative or a decision not to update relevant policyholder records with new information. An insurer's decision not to update policyholder records is not part of this statutory regulation (FSRA) of what constitutes an administrative decision; nevertheless the PAJA could still be relevant to understand when these decisions could be considered a public function. Although the latter falls outside the scope of this article, the National Horse Racing Authority of Southern Africa v Cyril Naidoo 2010 3 SA 182 (N) is briefly discussed in this article with reference to a public function. In this article, the failure of the FAIS Ombud to investigate a policyholder's (hereafter client) complaint (the insurer is unwilling to update client records) is an administrative decision and it is specifically regulated by FSRA. For this reason, the relevance of the Financial Services Tribunal is discussed when the FAIS Ombud directs the complaint (or the client may also refer a matter in specific circumstances, as if the FAIS Ombud fails to investigate the matter within a reasonable time) to the Financial Services Tribunal for a reconsideration of the decision.
oai:journals.assaf.org.za:article/7996
2021-01-21T06:00:14Z
per:Note
driver
v2
https://perjournal.co.za/article/view/7996
2021-01-21T06:00:14Z
Faculty of Law, North-West University, South Africa
Vol. 23 (2020); 1-19
Death of the Breadwinner and the Continuation of the Duty of Spousal Support: Discrepancies and Inequalities for Different Categories of Surviving Partners
Peer reviewed article
Bonthuys, Elsje; WITS
2020-12-08
url:https://perjournal.co.za/article/view/7996
spousal duty to maintain
unmarried intimate partners
widows
ex wives
action for loss of support
maintenance
death
en_US
This note considers the extension of the duty of spousal support after the death of the breadwinner by comparing the rights of different categories of surviving maintenance claimants, who tend to be mostly women: widows of the deceased, unmarried intimate partners of the deceased and ex-wives and ex-partners of the deceased. Financial support can be provided from the deceased estate in the form of a right to share in the joint matrimonial estate, a right to intestate succession, a right to claim from the estate in terms of the Maintenance of Surviving Spouses Act and a right to claim for loss of support from third parties who who caused the death of the deceased breadwinner. Comparing different categories of women, it becomes clear that the law disproportionately benefits widows over other partners and that the rights of ex-spouses are being gradually eroded by the jurisprudence. There is also a discrepancy between rights to claim against deceased estates, which favours widows, on the one hand, and rights to claim against third parties, which is available to a far larger group of surviving maintenance claimants, on the other hand. The note analyses the gendered causes and consequences of these differences.
oai:journals.assaf.org.za:article/8624
2021-05-13T07:21:21Z
per:Note
driver
v2
https://perjournal.co.za/article/view/8624
2021-05-13T07:21:21Z
Faculty of Law, North-West University, South Africa
Vol. 24 (2021); 1 - 26
A Note on the Ninth Amendment to the Constitution of Lesotho
Peer reviewed article
'Nyane, Hoolo; SCHOOL OF LAW, UNIVERSITY OF LIMPOPO
2021-05-12
url:https://perjournal.co.za/article/view/8624
Constitution of Lesotho
Ninth Amendment to the Constitution
vote of no confidence
dissolution of parliament
prorogation of parliament
caretaker government
en_US
The Constitution of Lesotho has been amended nine times since its adoption in 1993. The latest amendment, styled the Ninth Amendment to the Constitution, was assented into law in May 2020 amidst great controversy. The Amendment makes fundamental changes to the Constitution. Its main thrust is to cushion parliament from early dissolutions necessitated by a motion of no confidence against the government. The Amendment has also introduced other significant changes to the Constitution. Those other changes are on the prorogation of parliament, the Prime Minister's resignation for personal reasons and the caretaker government. All these changes have been inspired by the country's constitutional problems since the advent of coalition politics in 2012. The purpose of this commentary is to critique these changes. The paper contends that the changes brought about by the Ninth Amendment can at best be regarded as interim rather than permanent measures, while the long-lasting constitutional reforms are being prepared for the country.
oai:journals.assaf.org.za:article/10471
2021-07-20T07:36:01Z
per:Note
driver
v2
https://perjournal.co.za/article/view/10471
2021-07-20T07:36:01Z
Faculty of Law, North-West University, South Africa
Vol. 24 (2021); 1 - 18
Comment on the Single Marriage Statute: Implications for Customary Marriages
Peer reviewed article
Osman, Fatima; University of Cape Town
2021-07-19
url:https://perjournal.co.za/article/view/10471
Single Marriage Statute; customary marriage; South African family law
en_US
The South African Law Reform Commission is currently canvassing views on a potential single marriage statute that would reconcile the several enactments currently regulating marriage in South Africa. This comment considers the implications of the proposed Bill for the regulation of customary marriages. It argues that the definition of a marriage / life partnership may be under-inclusive and must be expanded to included polygamous – rather than polygynous – relationships without a religious or cultural basis and life partnerships where the partners are not cohabitants. Furthermore, while the Bill is commended for requiring a husband to obtain the consent of existing wives before he enters into a further customary marriage, the Bill must give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.
oai:journals.assaf.org.za:article/11764
2022-12-14T07:10:47Z
per:Note
driver
v2
https://perjournal.co.za/article/view/11764
2022-12-14T07:10:47Z
Faculty of Law, North-West University, South Africa
Vol. 25 (2022); (Published 13 September 2022) pp 1 - 27
Direct-to-Consumer Genetic Testing in South Africa: Stumbling Over the First Legal Hurdle?
Peer reviewed article
Gooden, Amy; University of KwaZulu-Natal
Thaldar, Donrich W; University of KwaZulu-Natal
2022-09-13
url:https://perjournal.co.za/article/view/11764
Direct-to-consumer genetic testing
saliva sample
removal
tissue
biological material
National Health Act
autonomy
privacy
human dignity
bodily integrity
en_US
Despite the growing popularity of direct-to-consumer genetic testing, there is minimal South African literature on the topic. The limited available research suggests that direct-to-consumer genetic testing is unregulated. However, we suggest that direct-to-consumer genetic testing is indeed regulated, and unusually so. The first step in the process – the collection of a saliva sample by consumers themselves – is unlawful on a plain reading of the National Health Act 61 of 2003 and the Regulations Relating to the Use of Human Biological Material. This is because these statutes require that certain healthcare professionals must remove saliva for genetic testing. Yet, on closer analysis, such an apparent ban on the self-collection of saliva is neither aligned with a purposive interpretation of the relevant legislation, nor would it survive constitutional scrutiny – as it impedes an individual's autonomy. It is concluded that, contrary to a plain reading of the relevant statutes, individuals can lawfully collect their own saliva for direct-to-consumer genetic testing. To provide legal clarity we recommend that the relevant provisions of the National Health Act 61 of 2003 and the Regulations Relating to the Use of Human Biological Material be amended to allow individuals to collect their own saliva samples.
oai:journals.assaf.org.za:article/12979
2022-12-14T07:12:34Z
per:Note
driver
v2
https://perjournal.co.za/article/view/12979
2022-12-14T07:12:34Z
Faculty of Law, North-West University, South Africa
Vol. 25 (2022); (Published 17 November 2022) pp 1 - 24
Digitalisation in the Health Sector: A South African Public Law Perspective
Peer reviewed article
Cachalia, Firoz; Director
Klaaren, Jonathan; University of the Witwatersrand
2021-11-17
url:https://perjournal.co.za/article/view/12979
digital health
privacy protection
regulation
risk
surveillance
technology
South Africa
en_US
The landscape of the health sector in South Africa as seen from a regulatory perspective is rapidly changing under the disruptive impact of digitalisation. Drawing on a paradigm of "strong rights" protection, particularly a robust privacy law fit for the digital age and sourced in the nation's Constitution, the operationalisation and application of health privacy regulation in post-apartheid society is briefly described. The note then enumerates and assesses a number of specific digital health technologies currently in use in interventions in South Africa. To do so, we adopt the international World Health Organisation (WHO) classification of digital health interventions. We also cover the recent South African response to the COVID-19 pandemic, noting the establishment in South Africa of the COVID-19 Tracing Database and subsequent technological interventions aimed at enhancing contact tracing and other responses to the pandemic. The establishment of the initial database was a development at the interface of the law enforcement and health sectors, which raised concerns regarding its risks to privacy, but it also raised hopes regarding its potential rewards in protecting public health.
oai:journals.assaf.org.za:article/14012
2022-12-14T07:11:32Z
per:Note
driver
v2
https://perjournal.co.za/article/view/14012
2022-12-14T07:11:32Z
Faculty of Law, North-West University, South Africa
Vol. 25 (2022); (Published 24 October 2022) pp 1 - 21
Integration of the Bride and the Courts: Is Integration as Living Customary Law Requirement Still Required?
Peer reviewed article
Bakker, Pieter; University of South Africa
2022-10-24
url:https://perjournal.co.za/article/view/14012
Customary law
living customary law
reguirements for customary marriage
handing over
integration
en_US
After 15 November 2000, a customary marriage must satisfy the provisions of section 3(1) of the Recognition of Customary Marriages Act 120 of 1998. Section 3(1)(b) incorporates the living customary law requirements into the Act. The publication explores whether handing over of the bride to the bridegroom's family is still required, based on two recent judgements from the South African Supreme Court of Appeal in two judgements: Mbungela v Mkabi 2019 ZASCA 134 and Tsambo v Sengadi In re: Tsambo 2020 ZASCA 46. The author argues that a clear distinction must be made between rituals and requirements when determining whether a customary marriage is valid under the living customary law. The author argues that Mbungela v Makabi is wrong in law and therefore not authority that "handing over in the wide sense" (or integration) is not required for the conclusion of a valid customary marriage. Tsambo v Sengadi In re: Tsambo is correct. Concluding that although the rituals of handing over (handing over in the narrow sense) can be amended, abbreviated, or waived the parties still have to comply with integration of the bride into the bridegroom's family for a valid customary marriage to take place. The author supports the revival of the presumption of a valid customary marriage if the couple cohabited after the lobolo negotiations are completed and the woman's family has not objected.