https://journals.assaf.org.za/per/issue/feed Potchefstroom Electronic Law Journal 2018-06-18T07:11:49+00:00 Prof Christa Rautenbach Christa.Rautenbach@gmail.com Open Journal Systems <p>The <em>Potchefstroom Electronic Law Journal</em>&nbsp;is published by the <a href="http://www.nwu.ac.za/pc-law" target="_blank" rel="noopener">Faculty of Law, North-West University</a>, South Africa. Contributions relevant to any aspect of law are welcomed.&nbsp;</p> <p>&nbsp;</p> https://journals.assaf.org.za/per/article/view/2345 Pathological Corporate Governance Deficiencies in South Africa's State-Owned Companies: A Critical Reflection 2018-06-18T07:11:49+00:00 Tebello Thabane tebello.thabane@uct.ac.za Elizabeth Snyman-Van Deventer snymane@ufs.ac.za <p>Globally, states use state-owned companies (SOCs) or public corporations to provide public goods, limit private and foreign control of the domestic economy, generate public funds for the fiscus, increase service delivery and encourage economic development and industrialisation. Particularly given its unique socio-political and economic dynamics, a country such as South Africa clearly needs this type of strategic enterprise. Yet, that does not mean that everything at our SOCs is as it should be. The beleaguered South African Broadcasting Corporation (SABC) has recently seen the resignation of board members, shareholder interference in its operational affairs, and a high turnover of chief accounting officers and other executive management members. Due to non-performance, it has also received several cash injections from its shareholder to enable it to continue to deliver its services. In addition, the shareholder minister took it upon herself to amend the SABC's memorandum of incorporation, conferring upon herself the authority to appoint, suspend or even dismiss key executive members. South African Airways (SAA), in turn, has had seven CEOs in less than four years, has had to be bailed out at a cost of R550 million, and has in addition been granted a R5 billion guarantee by the shareholder for a restructuring exercise. Other SOCs such as Eskom, the Post Office and Telkom have also experienced high board and executive management turnover, perennial underperformance necessitating regular bailouts, and challenges regarding the division of power between their boards and the various shareholder ministers. Another issue that seems to plague South Africa's SOCs is the appointment of board members and executive officials with questionable qualifications. By critically examining the corporate governance challenges besetting the SABC, SAA and Eskom in particular, this article seeks to explore the root causes of the corporate governance deficiencies of SOCs, and how their corporate governance can be enhanced. It is concluded that the challenges faced by the country's SOCs are twofold: firstly, the SOCs boards' lack of appreciation of the cardinal corporate governance rules, and secondly, the role of government as a single or dominant shareholder, which results in substantial political interference in the running of the SOCs. This dual problem requires a dual solution. To arrest the problem of poor corporate governance in SOCs, government as the shareholder should firstly appoint fit and proper directors, having followed a sound due-diligence process. Once it has established such properly skilled and competent boards, however, government should adopt an arm's-length approach to the affairs of the SOCs as a way of insulating these corporations from political interference</p> 2018-01-10T08:37:51+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/1367 Reviewing the suitability of affirmative action and the inherent requirements of the job as grounds of justification to equal pay claims in terms of the Employment Equity Act 55 of 1998 2018-06-18T07:11:48+00:00 Shamier Ebrahim ebrahs1@unisa.ac.za <p>The purpose of this article is to analyse the grounds of justification to pay discrimination as contained in South African law, the Conventions and Materials of the International Labour Organisation and the equal pay laws of the United Kingdom. Lastly, an analysis will be undertaken to determine whether affirmative action and the inherent requirements of the job provide justifications proper to equal pay claims.<strong></strong></p><div><br clear="all" /><hr align="left" size="1" width="33%" /><div><p> </p></div></div> 2018-01-12T12:11:30+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2955 The National Credit Act's remedies for reckless credit in the mortgage context 2018-06-18T07:11:46+00:00 Reghard Brits reghard.brits@up.ac.za The <em>National Credit Act</em> prohibits the granting of reckless credit and also provides for certain remedies that courts can grant to consumers who have fallen victim to reckless lending practices. Depending on the circumstances, these remedies are the partial or full setting aside of the consumer's rights and obligations under the agreement; the temporary suspension of the effect of the agreement; and the restructuring of the consumer's obligations. This article investigates these remedies with a focus on the effect that they would have on a creditor provider under a mortgage agreement. The argument is made that the contractual and security rights of creditor providers amount to "property" for purposes of section 25(1) of the <em>Constitution</em> (the property clause) and that, to some degree or another, each of these remedies involve a "deprivation" (limitation or modification) of the creditor provider's rights (property). The consequence is that, when one of these remedies is granted to a consumer, the court must tailor the remedy in such a way that the effect on the credit provider is not "arbitrary" as meant in the property clause. Therefore, the proposal is that there must be a sufficient relationship between the purpose of the remedy (to discourage reckless lending and to rectify the damage caused) and the effects thereof on the credit provider. In general, the remedy should not go further than what is necessary to rectify the prejudice suffered by the consumer due to the credit provider's conduct. The formulation of the remedy should accommodate considerations such as whether and to what extent either or both parties have already performed under the agreement, and it should accordingly ensure that the consumer will not be unjustifiably enriched. The remedy should also account for the effect that it would have if the consumer is permitted to keep the property that was subject to the reckless credit agreement. The article furthermore raises doubts regarding the recent high court judgment in <em>ABSA v De Beer</em>, where all the consumer's rights and obligations under a mortgage agreement were set aside due to the credit provider's reckless conduct. Remedies like this have serious consequences and therefore it is imperative that courts carefully investigate all the effects that the order would have, so that a just and reasonable outcome is achieved. This articles accordingly aims to provide some guidance with reference to the principles of constitutional property law. 2018-01-15T12:44:20+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2389 The Registration of Special Notarial Bonds under the Security by Means of Movable Property Act and the Publicity Principle: Lessons from Developments in Belgium 2018-06-18T07:11:39+00:00 Lefa Sebolaisi Ntsoane ntsoals@unisa.ac.za <p>Many people do not own immovable property to offer as security but do have movable property which can be offered as security for the repayment of a debt. In today’s world where the costs of a motor car can exceed that of a house, the increasing value of movable things makes it a popular and appropriate security object. Under the common law pledge, delivery of the movable property from the pledgor (debtor) to the pledgee (creditor) has to take place in order for the pledgee to acquire a real security right in the property. Delivery of the property is aimed at ensuring compliance with the publicity principle. The principle of publicity entails that the existence of a real security must be known to the public. With the aim to promote commerce, certain countries have taken the initiative in reforming their laws on pledge to allow the debtor to retain possession of the movable property that serves as security. Furthermore, technology has advanced to a level where national registration systems which can be accessed easily and at minimal costs can be established. The South African legislature enacted the Security by Means of Movable Property Act 57 of 1993 which makes provision for a pledge without possession. This Act deemed a duly registered notarial bond over specified movable property to have been delivered as if delivery has in fact taken place thereby substituted the common law delivery requirement with registration in the Deeds Office. On 30 May 2013, the Belgian House of Representatives adopted a Belgian Pledge Act which allows for a non-possessory pledge on movable property subject to registration in a newly created public register called the Electronic Pledge Register. This article therefore examines the efficacy of the registration system of special notarial bonds in South African law and whether this form of registration complies with the publicity principle looking at the developments of a computerised registration system taking place in Belgium.</p> 2018-01-19T07:02:37+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3459 In Search of the Perceived Quality and Impact of Accredited South African Law Journals: Exploring the Possibility of a Ranking System. A Baseline Study: 2009 - 2014 2018-06-18T07:11:35+00:00 Marita Carnelley marita.carnelley@nwu.ac.za <p>The <em>DHET Research Output Policy</em> (2015) indicates that there has been a change in the government’s approach to research funding. Previously all research published in any accredited journal was rewarded equally. A decision has been taken, however, that a shift will be made towards rewarding better quality and higher impact peer-review research. Additional mechanisms such as biometric/bibliometric data, including citations, assessments by discipline-specific panels of experts and/or post-publication reviews may be used to determine the quality and impact of publications. The policy notes that the DHET may distinguish between "high" and "low" impact journals after proper consultation.</p> <p>This article highlights the need for consultation by the legal fraternity with the DHET about the implementation of these possible mechanisms in the light of the special considerations applicable to the evaluation of law journals: most journals publish mainly local legal content, there is a limited number of active legal academics, the nature of legal research is not empirical, and a premium is placed on the writing of books.</p> <p>The research evaluates the available data between 2009 and 2014 in an attempt to assess if it would be appropriate to introduce a legal journal ranking system in South Africa. The article discusses direct and indirect forms of quality evaluation to inform possible ranking systems. This includes the data from the ASSAf expert panel evaluation of law journals in 2014 and other bibliometric data based on whether the journal is featured in international accredited lists, the size of its print-run, author prominence, rejection-rate, usage studies, and evaluations based on citations. An additional ranking system is considered, based on the five best outputs submitted to the National Research Foundation by applicants applying for rating.</p> <p>The article concludes that a law journal ranking system would be inappropriate for South Africa. None of the systems meet the minimum requirements for a trustworthy ranking of South African law journals, as the data available are insufficient, non-verifiable and not based on objective quality-sensitive criteria. Consultation with the DHET is essential and urgent to avoid the implementation of inappropriate measures of quality and impact assessmen</p> 2018-01-22T07:12:40+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3075 Le Roux v Dey and Children's Rights Approaches to Judging 2018-06-18T07:11:30+00:00 Meda Couzens Couzensm@ukzn.ac.za <p>The South African jurisprudence on the rights of children is vibrant and generally progressive, and is supported by an enabling constitutional and statutory framework. The majority decision in <em>Le Roux v Dey</em> 2011 3 SA 274 (CC), however, ignores the rights of children, and this is in stark contrast to some of the minority judgments in the same case. This contrast is surprising, considering that all of the judges applied the same legal framework. With reference to an emerging interest in defining children's rights approaches to judging, this article critically analyses the majority and minority judgments, and establishes their vulnerabilities and strengths as children's rights judgments. In the process, suggestions are made in relation to defining a children's rights approach to judging.</p> 2018-01-29T05:27:45+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3189 Human Rights and the New Sustainable Mechanism of the Paris Agreement: A New Opportunity to Promote Climate Justice 2018-06-18T07:11:29+00:00 Paola Villavicencio Calzadilla 27240916@nwu.ac.za <p>In the light of the new era of climate action under the <em>Paris Agreement </em>(PA) and the rights and justice issues raised by climate change-related policies and measures, this paper discusses the integration of a human rights component within the Sustainable Development Mechanism (SDM) of the PA. Established in article 6.4, the SDM is essentially a new mitigation mechanism available to all Parties aimed at helping them to achieve and increase their mitigation actions, while fostering sustainable development. Looking back at the experience of the Clean Development Mechanism (CDM) of the <em>Kyoto Protocol</em>, which bears great resemblance to the SDM, as well as to the human rights concerns raised during its implementation, the integration of human rights considerations into the SDM and its governing rules seems to be necessary to prevent negative outcomes and human rights harms when implemented. The adoption of such rules, consistent with international human rights, could provide an opportunity for State Parties to operationalise the language included in the PA and tackle the climate change challenge, while ensuring respect for human rights.</p> 2018-02-01T08:37:03+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2637 Pericles Should Learn to Fix a Leaky Pipe – Why Trial Advocacy Should Become Part of the LLB Curriculum (Part 1) 2018-06-18T07:11:28+00:00 Willem Hendrik Gravett willem.gravett@up.ac.za <p>It is a sad fact that at most university law schools in South Africa, a student can graduate without ever having set foot in a courtroom, and without ever having spoken to, or on behalf of, a person in need of advice or counsel. The past several years have witnessed a swelling chorus of complaints that the current LLB curriculum produces law graduates who were "out of their depth" in practice. My purpose is to make a case for the inclusion in the LLB curriculum of a course in trial advocacy. This endeavour of necessity invokes the broader debate over the educational objectives of a university law school – a debate memorably framed by William Twining as the two polar images of "Pericles and the plumber". My thesis is that the education of practising lawyers should be the primary mission of the university law school. The first part of this contribution is a response to those legal academics who hold that the role of the law school is to educate law students in the theories and substance of the law; that it is not to function as a trade school or a nursery school for legal practice. With reference to the development of legal education in the United States, I argue that the "education/training" dichotomy has been exposed as a red herring. This so-called antithesis is false, because it assumes that a vocational approach is necessarily incompatible with such values as free inquiry, intellectual rigour, independence of thought, and breadth of perspective. The modern American law school has shown that such so-called incompatibility is the product of intellectual snobbery and devoid of any substance. It is also often said that the <em>raison d'être</em> of a university legal education is to develop in the law student the ability "to think like a lawyer". However, what legal academics usually mean by "thinking like a lawyer" is the development of a limited subset of the skills that are of crucial importance in practising law: one fundamental cognitive skill – analysis – and one fundamental applied skill – legal research. We are not preparing our students for other, equally crucial lawyering tasks – negotiating, client counselling, witness interviewing and trial advocacy. Thinking like a lawyer is a much richer and more intricate process than merely collecting and manipulating doctrine. We cannot say that we are fulfilling our goal to teach students to "think like lawyers", because the complete lawyer "thinks" about doctrine <em>and</em> about trial strategy <em>and</em> about negotiation <em>and</em> about counselling. We cannot teach students to "think like lawyers" without simultaneously teaching them what lawyers do. An LLB curriculum that only produces graduates who can "think like lawyers" in the narrow sense ill-serves them, the profession and the public. If the profession is to improve the quality of the services it provides to the public, it is necessary for the law schools to recognise that their students must receive the skills needed to put into practice the knowledge and analytical abilities they learn in the substantive courses. We have an obligation to balance the LLB curriculum with courses in professional competence, including trial advocacy – courses that expose our students to what actually occurs in lawyer-client relationships and in courtrooms. The skills our law students would acquire in these courses are essential to graduating minimally-competent lawyers whom we can hand over to practice to complete their training. The university law school must help students form the habits and skills that will carry over to a lifetime of practice. Nothing could be more absurd than to neglect in education those practical matters that are necessary for a person's future calling.</p> 2018-02-01T12:35:12+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2635 Pericles Should Learn to Fix a Leaky Pipe – Why Trial Advocacy Should Become Part of the LLB Curriculum (Part 2) 2018-06-18T07:11:26+00:00 Willem Hendrik Gravett willem.gravett@up.ac.za <p>The inescapable reality is that most law school graduates are headed for professional life. This means that law schools have some accountability for the competence of their graduates, and thus an educational responsibility to offer their students instruction in the basic skills of legal representation. The most obvious and direct gain from the university law school offering more training in the generally neglected applied legal skills of trial advocacy, interviewing, counselling, drafting and negotiation, is the benefit to students in helping them bridge the gap between traditional basic legal education and practice. Although I strongly believe that the LLB curriculum should also include courses in legal writing, negotiation, client counselling, and witness interviewing, I emphasise adding a clinical course in trial advocacy to the LLB curriculum for a number of specific reasons. Trial advocacy consists of a set of skills that transcends the walls of the courtroom. It is difficult to conceive of a practising lawyer who does not, in some way and at some time, utilise the skills of advocacy - fact analysis, legal integration and persuasive speech. Even the technical "forensic skills" of trial advocacy, such as courtroom etiquette and demeanour, learning how to phrase a question to elicit a favourable response, and making an effective oral presentation, transfer readily to a wide range of applications within both the legal and business worlds. In addition to learning how to prepare and present a trial from the opening speech through to the closing argument, in a trial advocacy course students would also learn to apply procedural, substantive and ethical rules of law to prove or defend a cause of action. Moreover, if university law schools fail to contribute to establishing a substantial body of competent trial lawyers, our failure will ultimately take its toll on our system of justice. The quality of courtroom advocacy directly affects the rights of litigants, the costs of litigation, the proper functioning of the justice system, and, ultimately, the quality of justice. Also, traditional law school teaching in legal ethics is necessarily abstract and a-contextual. It can be effective at providing instruction in the law of lawyering, but it is seldom as productive when it comes to examining more subtle questions. The university trial advocacy course is the ideal forum in which to raise ambiguous and textured ethical issues. Ethics problems cannot be avoided or rationalised, because the student trial lawyer must always make a personal decision. In the ethics classroom, it is all too easy to say what lawyers should do. In the simulated courtroom, students have to show what they have chosen to do. I argue that a university trial advocacy course should not be antithetical to the university mission. Thus, students should be given the opportunity to learn not only "how" to conduct a trial, but also "why" their newly acquired skills should be used in a certain way, and "what" effect the use of that skill could have. Through properly constructed case files, assignments and class discussions, students should be able to reflect on issues that go beyond the mere mastery of forensic skills. A university course in trial advocacy must be infused with instruction in evidence, legal ethics, procedure, litigation planning, the encouragement of critical thinking about the litigation and trial process, and the lawyer's role in the adversary system. I also suggest, in concrete terms and by way of example, the outlines of both the theoretical and practical components of a university trial advocacy course that would result in a highly practical course of solid academic content.</p> 2018-02-01T12:45:06+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/1368 Facing the Challenge of Improving the Legal Writing Skills of Educationally Disadvantaged Law Students in a South African Law School 2018-06-18T07:11:25+00:00 Angela Diane Crocker crockera@ukzn.ac.za <p>Many first-year students in the School of Law at the University of KwaZulu-Natal, Howard College, who have been disadvantaged by a poor primary and secondary education, exhibit poor legal writing skills. Over a period of four years, in order to address this urgent need for legal writing instruction, the School of Law introduced two successive legal writing interventions. The first intervention was the Concise Writing Programme, followed by the Integrated Skills in Context Programme. The Concise Writing Programme focused on English writing skills and grammar in the hope that first-year law students would be able to transfer these generic writing skills to the more specific legal discourse within which they were learning to operate. The Law School reviewed the success of this initial programme and found that students who took part in the programme not only lacked the motivation to learn generic English writing skills, but that they also did not find it easy to transfer these skills to the more specific legal writing environment. The Law School then implemented a second legal writing intervention – The Integrated Skills in Context Programme. This programme acknowledged the fact that legal writing has a multi-faceted nature, encompassing legal analysis and application, as well as logical sequencing and argument, all of which could not be taught in a vacuum, particularly when most of the student base was largely unfamiliar with any form of legal discourse and many had English as a second language. This paper recognises that there is no silver bullet to improving the legal writing skills of these students. The reality is that it will take hard work as well as financial incentives to make a difference to these students' legal writing skills. Our students need intensive one-on-one attention by qualified academics, and this means that those doing the instruction must be recognised and adequately compensated.</p> 2018-02-02T10:59:45+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2916 An Analysis of the Regulatory Environment Governing Hearsay Electronic Evidence in South Africa: Suggestions for Reform – Part One 2018-06-18T07:11:22+00:00 Lee Swales swalesl@ukzn.ac.za <p>The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence – with a view to providing clear, practical suggestions for regulatory reform in the context of the South African Law Reform Commission's most recent Discussion Paper on electronic evidence.</p> <p>Technology has become an indispensable part of modern life.Â&nbsp; In particular, the internet has facilitated new forms of business enterprise, and shifted basic communication norms.Â&nbsp; From a legal perspective, technology has presented several novel challenges for courts and practitioners to deal with – one of these key challenges relates to electronic evidence, and in particular, the application of the hearsay rule to the digital environment.</p> <p>The South African Law Reform Commission has identified the application of the hearsay rule as one of the core concerns with regard to electronic evidence and certain academic analysis has revealed inefficiency with the current legal position which may involve multiple sources of law. Moreover, the Law Society of South Africa has stated that there is some confusion amongst members of the profession in relation to hearsay as it applies to electronic evidence.</p> <p>With the pervasive and burgeoning nature of technology and the internet in mind, it is natural to assume that electronic evidence will be relevant in most forms of legal proceedings in the future, and hearsay electronic evidence in particular will play an increasingly important role in years to come.</p> <p>Consequently, this two-part article will seek to summarise and comment on the proposed anomaly with regard to the key definition insofar as electronic evidence is concerned – data messages – and discuss how the proposed version of the <em>Cybercrimes and Cybersecurity Bill</em> (B6-2017), read together with <em>Electronic Communications and Transactions Act </em>No. 25 of 2002 (<em>ECT</em> Act) will leave South Africa with conflicting definitions of this term.Â&nbsp;</p> <p>Further, this article will analyse whether electronic evidence (data messages) can constitute hearsay within the meaning of section 3 of the <em>Law of Evidence Amendment Act</em> 45 of 1988; examine whether section 15 of the <em>ECT</em> Act should liberate electronic evidence from hearsay considerations; consider how real electronic evidence should be treated (as opposed to documentary hearsay evidence); consider the interaction of the statutory exceptions to the hearsay rule in the context of electronic evidence; analyse several analogous foreign jurisdictions – and consider how these jurisdictions treat hearsay electronic evidence; and finally, to conclude with several suggestions for law reform in the context of the SA Law Reform Commission Discussion Paper 131 <em>Review of the Law of Evidence</em> (2014).</p> <p>Â&nbsp;</p> 2018-03-27T05:46:20+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/4496 An Analysis of the Regulatory Environment Governing Hearsay Electronic Evidence in South Africa: Suggestions for Reform – Part Two 2018-06-18T07:11:21+00:00 Lee Swales swalesl@ukzn.ac.za <p>The purpose of this two-part article is to examine the regulatory environment governing hearsay electronic evidence in South Africa with a view to suggesting law reform in the light of the most recent proposals put forward by the South African Law Reform Commission.</p> <p>Part one considered the definition of data messages in the context of hearsay electronic evidence and concluded that amendment is required (as suggested by the South African Law Reform Commission). Further, part one sought to answer two additional queries posed in <em>Discussion Paper 131 Review of the Law of Evidence</em> in relation to electronic hearsay, ultimately finding that a data message can constitute hearsay within the meaning of the applicable legislation; further, that South African law must distinguish between data messages produced substantially by a computer or mechanical process and those that rely substantially on the credibility of a person.</p> <p>Part two of this article will review the statutory exceptions to the hearsay rules applicable to electronic evidence, including the controversial section 15(4) of the <em>Electronic Communications and Transactions Act</em> 25 of 2002. Further, part two will analyse the situation in selected foreign jurisdictions where hearsay electronic evidence has had more time to mature and develop (United Kingdom, Canada and United States) with a view to incorporating suggestions that South Africa can implement.</p> <p>Finally, this article will conclude by providing suggestions for law reform in the context of the recommendations put forward by the South African Law Reform Commission, and will suggest that that there must be law reform in at least the following areas: the definition of data messages; the definition of the term document in the statutes applicable to the hearsay exceptions; a distinction between types of electronic evidence insofar as computer-generated evidence with human intervention, and without human intervention is concerned; and more cohesion and alignment with the statutory hearsay exceptions.</p> 2018-03-27T06:03:11+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2004 Justificatory Theories for Intellectual Property Viewed Through the Constitutional Prism 2018-06-18T07:11:23+00:00 Mikhalien Du Bois dboism@unisa.ac.za <p>In order to determine the extent to which intellectual property rights should enjoy protection under the constitutional property clause, some of the classical and newer justificatory theories for property may be employed, including the labour theory, reward theory, incentive theory, theory of natural law, spiritual theories, personality theory, economic theory, and theory of natural monopoly. These theories must be applied in line with the Constitution, keeping in mind that other fundamental rights must be balanced with the protection afforded to intellectual property in order to ensure its continued production. It is also important that intellectual property statutes be developed to promote a thriving intellectual commons.</p> 2018-03-27T00:00:00+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/1758 The Direct Applicability of SADC Community Law in South Africa and Zimbabwe: A Call for Supranationality and the Uniform Application of SADC Community Law 2018-06-18T07:11:18+00:00 Tshidi Phooko phookmr@unisa.ac.za <p style="margin: 0in 0in 12pt; text-align: justify;"><span lang="EN-ZA" style="line-height: 115%; font-family: 'Arial','sans-serif'; font-size: 12pt; mso-ascii-theme-font: minor-bidi; mso-hansi-theme-font: minor-bidi; mso-bidi-font-family: Arial; mso-bidi-theme-font: minor-bidi; mso-ansi-language: EN-ZA;">The Southern African Development Community Tribunal (SADC Tribunal) became operational in 1992 and delivered several judgments against Zimbabwe. Some of those decisions are yet to be enforced. The attempt to enforce them contributed to the demise of the SADC Tribunal. The tension between community law and domestic law, international law and national law, and community law and international law is as old as the hills. The monist and dualist theories of international law assist in attempting to clarify the nature of the relationship between international law and municipal law. However, there is no guidance when it comes to community law and national law. </span><span lang="EN-ZA" style="line-height: 115%; font-family: 'Arial','sans-serif'; font-size: 12pt; mso-ascii-theme-font: minor-bidi; mso-hansi-theme-font: minor-bidi; mso-bidi-font-family: Arial; mso-bidi-theme-font: minor-bidi; mso-ansi-language: EN-ZA; mso-fareast-language: EN-ZA;">This paper will explore on how SADC Community law can be applied uniformly by South Africa and Zimbabwe including all other SADC member states. This will be done through decided cases with specific reference to South Africa and Zimbabwe. In order </span><span lang="EN-ZA" style="line-height: 115%; font-family: 'Arial','sans-serif'; font-size: 12pt; mso-ascii-theme-font: minor-bidi; mso-hansi-theme-font: minor-bidi; mso-bidi-font-family: Arial; mso-bidi-theme-font: minor-bidi; mso-ansi-language: EN-ZA;">to learn best practices from other jurisdictions, the paper will to the extent relevant, make reference to the <span style="background: white;">East African Court of Justice, the European Union (EU) </span>and the European Court of Justice (ECJ). </span><span lang="EN-ZA" style="line-height: 115%; font-family: 'Arial','sans-serif'; font-size: 12pt; mso-ascii-theme-font: minor-bidi; mso-hansi-theme-font: minor-bidi; mso-bidi-font-family: Arial; mso-bidi-theme-font: minor-bidi; mso-ansi-language: EN-ZA; mso-fareast-language: EN-ZA;">The discourse will conclude by making a proposal for the adoption of a revised Protocol on the SADC Tribunal that will assist in clarifying the nature of the relationship between SADC Community law and national laws of SADC member states.</span></p> 2018-03-27T12:48:58+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3407 The Testimonial Competence of Children: A Need for Law Reform in South Africa 2018-06-18T07:11:11+00:00 Mildred Bekink bekinm@unisa.ac.za <p style="margin: 0cm 0cm 8pt; text-align: justify;"><span style="line-height: 107%; font-family: 'Tahoma',sans-serif; font-size: 12pt; mso-ansi-language: EN;" lang="EN">Modern-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime and consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. In South Africa, as in many other countries, a child is, however, permitted to testify in a criminal court only once the presiding officer is satisfied that the child is competent to be a witness. The competency test, though, presents a critical initial challenge for child witnesses, as it focuses on their ability to answer questions about the concepts of truth and lies. These inquiries can be intimidating and confusing, especially to younger children, and may result in children who would otherwise have been capable of giving evidence being prevented from giving their testimony. Various legal and psychological fraternities have accordingly called for the abolition or amendment of the truth-lie competency requirement. Recent psychological research about the potential of a child to lie has once again raised fundamental questions about the competency inquiry, suggesting that an assessment of children's understanding of truth and lies has no bearing on whether the child will in fact provide truthful evidence in court. These empirical findings precipitated the amendment of competency rules by various countries such as the United Kingdom and Canada. The findings likewise raise serious questions and or doubt about the suitability of the South African competency requirements. The purpose of this paper is to review the current South African position with a view to proposing suggestions for meaningful legal reform.</span></p> 2018-04-11T09:57:23+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2917 The Testamentary Trust: Is it a Trust or a Will? Hanekom v Voigt 2016 1 SA 416 (WCC) 2018-06-18T07:11:09+00:00 Eben Nel Eben.Nel@psg.co.za <p>The recent judgment in <em>Hanekom v Voigt </em>2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust. It is evaluated from both a testamentary disposition and a trust law perspective, with the aim of determining whether the <em>Hanekom</em> matter has touched a particular nerve in the will versus trust debate as far as the trust <em>mortis </em><em>causa </em>is concerned. From this judgment, the importance of differentiating between the spheres of testamentary law and trust law, to ensure legal certainty, became clear. The court submitted that the mere fact that a trust happens to be of testamentary origin should not influence the evaluation of the validity of the amendment of the trust instrument. The court underlined the dynamic nature of the trust figure in referring to it as a "supple, living institution." The nature of the powers vested in the Master of the High Court, both as far as the appraisal of the trust instrument and the appointment of trustees are concerned, is also considered in the judgement. In evaluating the facts of the case, the court recognised the applicability of the <em>Oudekraal</em> principle as it has been developed in the field of administrative law. The writer comes to the conclusion that, while the <em>Hanekom</em> case does illustrate some legal challenges in the last will and testament environment, it also offers a number of valuable lessons for will-drafters. The approach by the court is encouraging, as it shows some sensitivity for the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will <em>per se</em> is to be welcomed, and is a true and realistic reflection of the nature of the institution.</p> 2018-04-11T09:59:46+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/1721 South Africans offering Foreign Military Assistance Abroad: How real is the Risk of Domestic Prosecution? 2018-06-18T07:11:08+00:00 Shannon Joy Bosch boschs@ukzn.ac.za <p>This article discusses the efficacy of the existing <em>Regulation of Foreign Military Assistance Act</em> 15 of 1998, and the proposed <em>Prohibition of Mercenary Activities and Regulation of Certain Activities in the Country of Armed Conflict Act</em> 27 of 2006, in regulating the private security industry and prosecuting those in contravention of the legislation. It discusses the motivations behind recent attempts to deny the citizenship of South African nationals who had taken up employment abroad in the private security industry. The article gives some guidance regarding the likelihood of prosecution for the new school of South African fighters taking up arms for foreign causes like ISIS, the IDF, and Nigeria<strong>.</strong></p> <p align="center"><strong>&nbsp;</strong></p> 2018-04-11T10:14:04+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2914 The Legal Nature of the Embryo: Legal Subject or Legal Object? 2018-06-18T07:11:12+00:00 Robbie Robinson robbie.robinson@nwu.ac.za <p>This contribution addresses the question regarding the legal nature of a cryopreserved embryo. Such preservation is a relatively modern development in the medical field. Neither Tennessee (USA) law nor European law provides an acceptable explanation regarding its legal nature. It is argued herein that this is mainly due to the fact that rather unscientific language is applied. It is suggested that the using of concise legal terminology may contribute to a better understanding. The terms legal subject and object and legal subjectivity are well-known and have definite legal content. By drawing an analogy between the legal status of an infant and such embryos, the conclusion is reached that embryos are not legal subjects <em>sui iuris</em> but indeed share the legal subjectivity of their parents.</p> 2018-04-10T00:00:00+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2971 Intermediaries and the International Obligation to Protect Child Witnesses in South Africa 2018-06-18T07:11:07+00:00 Rongedzayi Fambasayi stayclassik@gmail.com René Koraan rene.koraan@nwu.ac.za <p>This contribution examines the protection of child witnesses in criminal proceedings under international and regional laws. This consideration is made against the background that the <em>Constitution of the Republic of South Africa</em>, 1996 proclaims in section 39(1)(b) that in interpreting the Bill of Rights and any legislation a court or tribunal must consider international law. The United Nations <em>Convention on the Rights of the Child</em> (1989), the <em>African Charter on the Rights and Welfare of the Child</em> (1990) and the United Nations <em>Guidelines on Justice for Child Victims and Witnesses to Crime</em> (2005) do not make specific reference to child witnesses and how they should be treated. However, it is argued that the guiding principles enshrined therein provide for the protection of child witnesses, particularly the best interests of the child and the right to participate. In addition, the article enumerates and explains the rights of child witnesses as provided for in the UN Guidelines. International law will be discussed first, and then South African law, to establish if the international obligation to protect child witnesses is being adhered to.</p> 2018-04-16T12:43:12+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2950 Pre-agreement assessment as a responsible lending tool in South Africa, the EU and Belgium: Part 1 2018-06-18T07:11:04+00:00 Corlia Maritha van Heerden corlia.vanheerden@up.ac.za Reinhard n/a Stteennot reinhard.steennot@ugent.be <p>Responsible lending has become a very pertinent issue on the agenda of credit regulators across the globe who seek to combat the causes of consumer over-indebtedness. In this context the use of “pre-agreement assessment” as a tool to filter out those instances where, based on a consumer’s creditworthiness or ability to repay, credit should not be granted to such consumer, is a feature common to the lending regimes of various jurisdictions.This contributionÂ&nbsp; consists of two parts: PartÂ&nbsp;1 provides a critical discussion of the reckless credit provisions of the National Credit Act 34 of 2005. PartÂ&nbsp;2 detailsÂ&nbsp;the responsible lending measures contained in the EU Consumer Credit Directive and the EU Mortgage Credit Directive and providesÂ&nbsp;an appraisal of the responsible lending measures introduced by Belgium, being a jurisdiction that has always been very pro-active in the context of consumer credit protection.</p> <p>Â&nbsp;</p> 2018-04-18T10:42:52+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2954 Pre-agreement assessment as a responsible lending tool in South Africa, the EU and Belgium: Part 2 2018-06-18T07:11:03+00:00 Corlia Maritha van Heerden corlia.vanheerden@up.ac.za Reinhard n/a Steennot Reinhard.Steennot@ugent.be <p>Responsible lending has become a very pertinent issue on the agenda of credit regulators across the globe who seek to combat the causes of consumer over-indebtedness. In this context the use of "pre-agreement assessment" as a tool to filter out those instances where, based on a consumer's creditworthiness or ability to repay, credit should not be granted to such a consumer, is a feature common to the lending regimes of various jurisdictions. This contribution consists of two parts: Part 1 provides a critical discussion of the reckless credit provisions of the <em>National Credit Act </em>34 of 2005. Part 2 details the responsible lending measures contained in the EU Consumer Credit Directive and the EU Mortgage Credit Directive and provides an appraisal of the responsible lending measures introduced by Belgium, being a jurisdiction that has always been very pro-active in the context of consumer credit protection.</p> <p>&nbsp;</p> 2018-04-18T10:47:11+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2409 "Violence" In Sport and the Violenti non Fit Iniuria Defence: A Perspective on the Death of the Cricket Player Phil Hughes 2018-06-18T07:11:16+00:00 Pieter Labuschagne labuspah@unisa.ac.za <p>The article evaluates the defence of <em>violenti non fit inuiria</em> in sport with specific reference to the principle of <em>bones mores </em>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.</p> 2018-03-27T13:07:05+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/1685 Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration 2018-06-18T07:11:14+00:00 Charnelle van der Bijl vanderbijlc@gmail.com <p>This contribution examines parental criminal responsibility for the delinquent acts of their children.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; 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 <em>aegis </em>of the criminal law.</p> 2018-04-06T05:46:28+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/2781 Maintaining the Ecological Flows of Estuaries: A Critical Reflection on the Application and Interpretation of the Relevant Legal Framework through the Lens of the Klein River Estuary 2018-06-18T07:11:32+00:00 Alexander Ross Paterson Alexander.Paterson@uct.ac.za <p>South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country’s estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is however contingent upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary, and what one recent decision of the Supreme Court of Appeal in <em>Abbott v Overstrand Municipality</em> (2016) clearly illustrates is that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary’s understanding and application thereof. It furthermore illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire.</p> 2018-01-26T06:20:52+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/1737 Integration of the Bride as a Requirement for a Valid Customary Marriage: Mkabe v Minister of Home Affairs 2016 ZAGPPHC 460 2018-06-18T07:11:19+00:00 Pieter Bakker bakkep@unisa.ac.za <p><em>Since the Recognition of Customary Marriages Act 120 of 1996 was promulgated in 15 November 2000 the courts are faced with the daunting task to determine whether a customary marriage is valid under the Act. The courts find it troublesome to determine exactly what the essential requirements under the living customary law are. One of the issues the courts have to deal with is the question whether the incorporation of a bride into her husband's family is an essential requirement for a valid customary marriage or can the families waive the requirement or condone non-compliance? The court in Mkabe v Minister of Home Affairs [2016] ZAGPPHC 460 found that the requirement can be waived or condoned. This case note criticises the Mkabe decision and illustrates why the incorporation of the bride is indeed an essential requirement for a valid customary marriage.</em></p> 2018-03-27T06:10:37+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/4220 Disposing of Bodies, Semantically: Notes on the Meaning of "Disposal" in S v Molefe 2018-06-18T07:11:01+00:00 Terrence R Carney Carnetr@unisa.ac.za <p>In <em>S v Molefe</em> the presiding officer determines the meaning of the word "disposal" at the hand of two criteria, namely (1) visibility and (2) permanence; this means a body has to be permanently out of sight to be considered disposed of. He applies these two criteria in order to conclude if the accused is guilty of concealing the birth of her child by disposing of its body. In doing so, the court no longer interprets the word as an everyday word but turns it into a legal term. This note questions the linguistic soundness of the criteria by investigating how language structures space, and how these constructions relate to the word "disposal". In order to scrutinise the criteria, a text analysis was carried out by applying Talmy's ideas surrounding prepositions in structuring space and movement. Connected to this is the semantic difference between the words "seeing" and "looking": seeing is a sensory act, whereas looking is a cognitive one. In keeping with the contested word's status as a legal term, the difference between seeing and looking aids in formulating two new criteria. Courts may consider assessing whether disposal took place on the grounds of (a) containment and (b) movement; for instance, has the body been moved from one location to another and is the body being contained within another object like a bucket, a wooden box or a suitcase?</p> 2018-05-23T05:44:55+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/4792 Values and the Rule of Law: Foundations of the European Union – An Inside Perspective from the ECJ 2018-06-18T07:11:15+00:00 Thomas von Danwitz Thomas.Von_Danwitz@curia.europa.eu <p>Let us remember what has been written, ratified and set into force with the Treaty of Lisbon. The preamble of the Charter of Fundamental Rights starts out by stating: "The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values." And it goes on: "Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice." Even if a cynic might have considered these words to be merely a lip service unlikely to disturb the power-play European governments were so eagerly engaged in, the Charter nonetheless became the supreme law of the land and the preferred tools of the trade of a rather awkward species of beings, already of bad repute for relying on the mere wording of legal acts, and even worse, for taking rights seriously: judges - in particular those of the European Court of Justice.</p> 2018-04-04T10:29:09+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/4949 Leadership, Social Justice and Transformation – Inspire a Leader 2018-06-18T07:11:05+00:00 Leona Valerie Theron director@concourt.org.za <p>Transformation is not impossible. In 1994 there were about 150 judges in this country. Of this number, one was female and one was black. Today there are 227 judges in South Africa, of whom 82 are female and 145 male. 34% are white and 64% are black. The judiciary has been totally transformed. This can and should happen in other areas.</p> 2018-04-18T00:00:00+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3222 Laws against Strikes – The South African Experience in an International and Comparative Perspective 2018-06-18T07:11:45+00:00 Michael Laubscher Michael.Laubscher@nwu.ac.za <p>This contribution reviews the book entitled <em>Laws against Strikes – The South African Experience in an International and Comparative Perspective </em>edited by Bob Hepple, Rochelle le Roux and Silvana Sciarra.</p> 2018-01-16T07:10:36+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3405 Aboriginal Customary Law: A Source of Common Law Title to Land 2018-06-18T07:11:43+00:00 Elmien Du Plessis elmien.duplessis@nwu.ac.za This contribution provides a short review of the book by Ulla Secher on aboriginal customary law as a source of common law title to land. 2018-01-16T12:32:51+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3406 Untitled: Securing Land Tenure in Urban and Rural South Africa 2018-06-18T07:11:42+00:00 Elmien Du Plessis elmien.duplessis@nwu.ac.za This contribution provides a review of the book edited by Donna Hornby, Rosalie Kingwill, Lauren Royston and Ben Cousins. It deals with the topic of land tenure in urban and rural South Africa and challenges the requirement of title deeds to secure land tenure. 2018-01-16T12:34:51+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/3424 Corruption and Human Rights Law in Africa 2018-06-18T07:11:40+00:00 Willard Tawonezvi Mugadza mugadzapsalm23@gmail.com <p>This book provokes the most pertinent debate engulfing Africa, that is, how to effectively deal with corruption in Africa – and it offers the human rights approach not as a replacement of criminal measures but to complement the already existing criminal measures, that gives a voice to the victims of corruption in Africa, who are, the ordinary citizens.</p> 2018-01-16T12:36:41+00:00 ##submission.copyrightStatement## https://journals.assaf.org.za/per/article/view/4215 The BRICS-Lawyers' Guide to Global Cooperation 2018-06-18T07:11:37+00:00 Franziska Sucker franziska.sucker@wits.ac.za <p>This contribution reviews the book "The BRICS-Lawyers' Guide to Global Cooperation"&nbsp;authored by&nbsp;Rostam J Neuwirth, Aexandr Svetlicinii and Denis De Castro Halis published by Cambridge University Press in 2017.</p> 2018-01-19T07:05:05+00:00 ##submission.copyrightStatement##