Potchefstroom Electronic Law Journal https://journals.assaf.org.za/index.php/per <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> en-US <p>This work is licensed under a <a href="http://creativecommons.org/licenses/by/4.0/" rel="license">Creative Commons Attribution 4.0 International License</a>.</p><p>Copyright in all material published in PER/PELJ vests in the author, provided that authors grant, by submission of their contributions, permission that their contributions may be shared and adapted without restriction. An author furthermore agrees that the same contribution may not be published elsewhere without the written permission of the editor.</p><p>Anyone gaining access, electronically or otherwise, to a contribution to PER, may quote from such contribution, use the intellectual content thereof, share and adapt it, but subject to the following conditions:</p><ul style="margin-left: 20pt;"><li><p>you must give appropriate credit, provide a link and indicate if changes were made; and</p></li><li><p>the copyright of the author(s) may not be infringed in any way.</p></li></ul> Christa.Rautenbach@gmail.com (Prof Christa Rautenbach) Rieette.Venter@nwu.ac.za (Rieette Venter) Thu, 31 Jan 2019 05:39:13 +0000 OJS 3.1.1.2 http://blogs.law.harvard.edu/tech/rss 60 Re-Categorising Public Procurement in South Africa: Construction Works as a Special Case https://journals.assaf.org.za/index.php/per/article/view/5270 <p>Public procurement is generally known to be the acquisition of goods and services by the government from the private sector. Construction works are considered to constitute services and as such are not specifically referred to in the <em>Constitution of the Republic of South Africa, </em>1996. Re-categorising public procurement may hold many advantages for the regulation of construction procurement law as a unique form of public procurement in South Africa. The definition of construction works is thus important when establishing what is procured in construction procurement. This definition in turn may indicate that the procurement of construction works is indeed a unique form of procurement and should accordingly be re-categorised in South African public procurement law.</p> Allison Megan Anthony ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/5270 Tue, 05 Mar 2019 06:21:54 +0000 Proselytising the Regulation of Religious Bodies in South Africa: Suppressing Religious Freedom? https://journals.assaf.org.za/index.php/per/article/view/5315 <p>In democratic pluralistic and secular societies, freedom of religion is a fundamental right to be enjoyed by all individuals and religious organisations. A unique feature of this human right is the extent to which it is premised on a personal belief. The latter can be "bizarre, illogical or irrational", but nevertheless deserving of protection in the interests of freedom of religion. However, when the expression of a religious belief or practice transgresses the civil or criminal law it must be dealt with in the relevant legislative framework to hold the transgressor liable. Measures taken by the state to regulate religious bodies in terms of a general supervisory council or umbrella body are an unreasonable and unjustifiable interference with freedom of religion, and hence unconstitutional. I am of the view that the right to freedom of religion depends for its constitutional validity – and viability – on there being no interference (or regulation) by the state except in instances as provided for in terms of relevant legislation.</p> Radley Henrico ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/5315 Tue, 12 Mar 2019 05:35:57 +0000 Alternatives to Bankruptcy in South Africa that Provides for a Discharge of Debts: https://journals.assaf.org.za/index.php/per/article/view/5364 <p>The problems faced by debtors in South Africa is not that there are no alternatives to insolvency proceedings, but that the available alternatives do not provide for a discharge of debt as with a sequestration order, which is ultimately what the debtor seeks to achieve. Debtors in South Africa can make use of debt review in terms of the <em>National Credit Act</em> 34 of 2005 or administration orders in terms of the <em>Magistrates' Court Act</em> 32 of 1944 to circumvent the sequestration process. However, both debt review and administration orders do not provide for a discharge of debt and provide for debt-restructuring only, in order to eventually satisfy the creditor's claims. Attention is given to the sequestration process and the alternatives to sequestration as they relate specifically to the discharge or lack of a discharge of a debtor's debts. The South African law is compared to Kenyan Law. This article seeks to analyse the alternatives to the bankruptcy provisions of the newly enacted Kenyan <em>Insolvency Act</em> 18 of 2015 in order to influence the possible reform of insolvency law in South Africa. Like the South African <em>Insolvency Act</em>, the old Kenyan <em>Bankruptcy Act</em> (Cap 53 of the Laws of Kenya) also did not have alternatives to bankruptcy. The old <em>Kenyan Bankruptcy Act</em>, however, contained a provision on schemes of arrangement and compositions. The Kenyan <em>Insolvency Act</em> now caters for alternatives to bankruptcy and provides a wide range of alternatives to bankruptcy, some of which allow debtors in different financial positions to obtain a discharge.</p> Zingaphi Mabe ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/5364 Tue, 12 Mar 2019 05:47:22 +0000 Municipal Law Making under SPLUMA: A Survey of Fifteen "First Generation" Municipal Planning By-Laws https://journals.assaf.org.za/index.php/per/article/view/4658 <p>The legal framework for spatial planning and land use management changed with the introduction of the new <em>Spatial Planning and Land Use Management Act</em> 16 of 2013 (SPLUMA). SPLUMA facilitates the shift of power over critical areas of land use management from provincial governments to local governments, which results from the <em>Constitution</em> allocating "municipal planning" to municipalities. With this comes a responsibility for municipalities to adopt municipal planning by-laws. This article focuses on four of the many challenges SPLUMA needed to address namely (1) the division of responsibilities between national, provincial and local government, (2) the interrelationship between plans and rights, (3) planning and informality and (4) making government cohere. The article introduces these four challenges and examines how SPLUMA seeks to address them. In particular, it conducts a preliminary assessment of fifteen "first generation" municipal planning by-laws to assess how they address the four themes in SPLUMA.</p> Jaap de Visser, Xavia Siyabonga Poswa ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/4658 Mon, 18 Mar 2019 12:46:53 +0000 Promoting Public Participation in the Energy Transition: The Case of France's National Debate https://journals.assaf.org.za/index.php/per/article/view/4290 <p>In an energy transitions era, the citizens tend to be increasingly considered as actors of the energy system. This situation reinforces in turn the importance of public participation processes into energy policy or legislation design. In 2012-2013, a significant public participation process in the field of energy policy was organised in France, named National Debate on the Energy Transition. From the beginning, it was proclaimed that its results would be integrated into a flagship energy transition act, which did happen with the adoption of the <em>Energy Transition for Green Growth Act</em> of 2015. This paper provides an overview of the organisation of this public debate and of the integration of its outcome into the <em>Energy Transition Act</em>. The experience of France can serve for other countries engaged in a process of transition towards a more sustainable society and especially towards a massive change of their energy mix. It addresses the successes as well as the failures of the French case and provides some key learning points to enhance the public participation into the Law-making process concerning the energy transition.</p> Romain Mauger ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/4290 Mon, 18 Mar 2019 12:48:03 +0000 The Appointment of a Proxy "At Any Time" in Terms of Section 58 of the Companies Act 71 of 2008: Richard Du Plessis Barry v Clearwater Estates NPC [2017] ZASCA 11 https://journals.assaf.org.za/index.php/per/article/view/4401 <p>Section 58(1) of the <em>Companies Act</em> 71 of 2008 gives a shareholder the right to appoint a proxy "at any time" for the purpose of participating in, speaking and voting on behalf of that shareholder at a shareholders′ meeting, or providing or withholding written consent on behalf of the shareholder in terms of section 60. One important issue that arises in regard to the appointment of a proxy relates to the proper interpretation of section 58(1) of the <em>Companies Act</em> 71 of 2008, namely whether this section, as read with section 58(3)<em>(c)</em>, constitutes an unalterable provision giving a shareholder an unlimited right to appoint a proxy "at any time" before the proxy exercises the shareholder's rights at the shareholders meeting, or whether the time period within which the instrument of a proxy′s appointment must be delivered to the company may be restricted by the MOI. This issue was considered by the SCA in the <em>Richard Du Plessis Barry</em> case in view of the appellant′s contention that the provisions of the MOI that limited the time period within which the instrument appointing a proxy must be delivered to the company, or other person on behalf of the company, were valid. In this note, I examine the <em>Richard Du Plessis Barry </em>case with a focus on the proper interpretation of the right of a shareholder to appoint a proxy "at any time" as conferred by section 58(1) of the <em>Companies Act</em> 71 of 2008. I provide some critical comments on the main issues that this judgement raises, including the interpretation of section 58(1) in the context of "alterable" and "unalterable" provisions of the <em>Companies Act</em> 71 of 2008, a purposive interpretation of section 58(1), the interaction between section 58(1) and section 58(3)<em>(c)</em>, the significance of the difference in the wording of section 58(1) of the <em>Companies Act</em> 71 of 2008 and section 189 of the previous <em>Companies Act</em> 61 of 1973, as well as the practical implications of the court's decision in this matter. This is followed by a brief comparative analysis with selected international jurisdictions and some concluding remarks.</p> Vela Madlela ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/4401 Thu, 31 Jan 2019 00:00:00 +0000 Sexual Harassment: Why do Victims so often Resign? E v Ikwezi Municipality 2016 37 ILJ 1799 (ECG) https://journals.assaf.org.za/index.php/per/article/view/5169 <p>This article endeavours to find answers to the question of why the victims of sexual harassment often resign after the harassment, while the perpetrator continues working, and suggests how some of the human cost to victims of sexual harassment can be prevented. <em>E v Ikwezi Municipality </em>provides a classic example of how the failure of the employer to protect the victim exacerbated her suffering from Post-Traumatic Stress Disorder (PTSD), eventually leaving her with no option but to resign. Had the employer conducted a risk analysis, it could have prevented the sexual harassment by alerting employees to the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace. Further, had the employer been aware that it was responsible for the victim's psychological safety also after the disciplinary hearing, it could have taken measures to ensure her safety. The unsatisfactory sanction (the harasser was not dismissed) could lastly have been referred to the Labour Court for review. Unfortunately, the wrong legal advice and an incompetent chairperson led to the municipality’s failing adequately to protect the victim. This caused (and aggravated) the symptoms of PTSD, which forced the victim to resign.</p> Karin Calitz ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/5169 Tue, 05 Feb 2019 06:49:42 +0000 Government Intervention and Suburban Sprawl https://journals.assaf.org.za/index.php/per/article/view/5853 <p>The writer is of the opinion that government intervention is the probable cause of suburban sprawl in American cities. Two types of sprawl &nbsp;are discussed, namely, sprawl which results due to to the creation of suburbs and sprawl arising from the inability to be mobile without the use of one's personal transport. The writer makes use of comparative tables and statistics to add credibility to the findings. The school system, the creation of highways, making jay-walking a crime and the legal obligation to provide huge parking lots for shopping centres are some of the unusual reasons why &nbsp;there has been excessive sprawl in American cities.</p> <p>Solutions are suggested to counter government intervention. &nbsp;Although the study is USA based, book could &nbsp;have universal appeal. However, as acknowledged by the writer, &nbsp;the cost that will have to be incurrred, may be a barrier.&nbsp;</p> Urmila Soni (Govindjee) ##submission.copyrightStatement## http://creativecommons.org/licenses/by/4.0 https://journals.assaf.org.za/index.php/per/article/view/5853 Tue, 19 Mar 2019 07:30:13 +0000