Showing papers in "Potchefstroom Electronic Law Journal in 2011"
TL;DR: In this paper, the uses of ubuntu in constitutional law, criminal law, administrative law, the law of property, family law, delict and contract are investigated and theoretical objections to the use of Ubuntu are stated and responded to.
Abstract: In this paper the uses of ubuntu in constitutional law, criminal law, administrative law, the law of property, family law, delict and contract are investigated. Furthermore the theoretical objections to the use of ubuntu are stated and responded to. It is found that ubuntu provides the South African courts with a metanorm similar to the English notion of equity and that it is being deployed to give voice to something distinctively African. It promises to lay the foundations for a cohesive, plural, South African legal culture", characterised by notions such as reconciliation, sharing, compassion, civility, responsibility, trust and harmony.
50 citations
TL;DR: The consumer protection act 68 of 2008, which was signed by the President of the Republic of South Africa on 29 April 2009 and published in the Government Gazette on 29 APR 2009, now provides an extensive framework for consumer protection and aims to develop, enhance and protect the rights of consumers and to eliminate unethical suppliers and improper business practices as mentioned in this paper.
Abstract: South Africa was in need of a comprehensive framework of legislation, policies and government authorities to regulate consumer-supplier interaction. The Consumer Protection Act 68 of 2008, which was signed by the President of the Republic of South Africa on 29 April 2009 and published in the Government Gazette on 29 April 2009, now provides an extensive framework for consumer protection and aims to develop, enhance and protect the rights of consumers and to eliminate unethical suppliers and improper business practices. Certain areas of the common law regarding consumer rights have been codified by the Act and certain unfair business practices that were previously unregulated are now governed by the Act. The Act has a wide field of application. It applies to every transaction occurring within South Africa for the supply of goods or services or the promotion of goods or services and the goods or services themselves, unless the transaction is exempted from the application of the Act. The Act also specifically regulates aspects of franchise agreements. In terms of the Act, consumers obtain several new rights and some existing rights are broadened and reinforced. These rights are: the right to equality in the consumer market; privacy; choice; disclosure and information; fair and responsible marketing; fair and honest dealing; fair, just and reasonable terms and conditions; and fair value, good quality and safety. The last right in terms of the Act deals with a supplier's accountability to consumers. The authors critically analyse and discuss these rights. It is clear that the Act is written in favour of the consumer. Various provisions of the Act make inroads into the common-law position to strengthen the position of the consumer vis-a-vis the supplier and suppliers are undoubtedly facing an onerous task to prepare to comply, and eventually attempt to comply, with the Act. Although the Act has its own interpretation clause, which provides that it must be interpreted in a manner that gives effect to the purposes of the Act, the Act poses many uncertainties and interpretational and practical challenges. Many questions are therefore raised, some of which remain unanswered. These questions illustrate some of the uncertainties concerning the scope and possible interpretation of the fundamental consumer rights.
48 citations
TL;DR: In this article, a typology of alternative enforcement tool categories, lists the generally argued benefits and disadvantages of both command and control approaches and alternative enforcement tools, offers framework conditions for the successful adoption and use of some of the enforcement tools and explores empirical and other evidence to determine whether environmental management systems are adequately able to drive sustained and consistent legal compliance.
Abstract: A number of alternative environmental enforcement tools are available that may be used to enhance the environmental enforcement effort in South Africa. Current debate focuses on which tools work effectively and the reasons for their success. The debate is however dominated by issues concerning policy challenges, such as the adoption of alternative tools and necessary arrangements to ensure these tools contribute to overall environmental enforcement performance. In order to contribute to the debate and stimulate further debate, this article offers a typology of alternative enforcement tool categories, lists the generally argued benefits and disadvantages of both command and control approaches and alternative enforcement tools, offers framework conditions for the successful adoption and use of some of the enforcement tools, and explores empirical and other evidence to determine whether environmental management systems are adequately able to drive sustained and consistent legal compliance. A South African case study is also presented to illustrate the manner in which a combination of alternative enforcement tools may be integrated with command and control tools to ensure consistent and sustained legal compliance.
27 citations
TL;DR: The Child Justice Act is the first formal legislative step to introduce restorative justice in South Africa, and promotes reconciliation and problem solving as an approach to the criminal behaviour of youth.
Abstract: In the midst of concerns about serious offences committed by young people, the Child Justice Act is the first formal legislative step to introduce restorative justice in South Africa, and promotes reconciliation and problem solving as an approach to the criminal behaviour of youth. This article analyses the new place of restorative justice and ubuntu i n the Act through an analysis of the Preamble, Objects and General Principles sections of the Act as well as the chapters on diversion and sentencing. It notes that there is a clear and consistent framework for restorative justice and ubuntu in the Act that accords with the Constitutional Court’s understanding of both concepts. In addition, the article also enquires if the inclusion of these concepts has created a criminal justice system for children that does not hold them properly accountable for their actions. The question as to whether or not the Act has created a "just say sorry" regime is answered in the negative by way of reference to the numerous checks and balances included in the Act by the legislature. In this context it is contended that the inclusion of ubuntu -related ideologies remains relevant to the development of indigenous and locally constructed images of Africanised forms of justice, but that the true test of how it is integrated into the criminal justice system lies in the manner in which criminal justice role-players engage with ubuntu and how its implementation is effected.
20 citations
TL;DR: The authors examines the response of the Nigerian religious leaders to the challenges of the HIV/AIDS pandemic and discusses some of the challenges facing religious leaders as they grapple with the consequences of this pandemic.
Abstract: The tragic impact of the HIV/AIDS pandemic in Nigeria and its rate of escalation despite increasing access to health services have been alarming and terrifying. Nigerian people are very religious, yet the impact of the pandemic leaves nothing untouched. The article examines the response of the Nigerian religious leaders to the challenges of the HIV/AIDS pandemic. It discusses some of the challenges facing religious leaders as they grapple with the consequences of this pandemic and explores ways in which they can make a real difference in halting its spread.
18 citations
TL;DR: In this article, the impact of some of the provisions of the National Credit Act (NCA) on the application for voluntary surrender, as well as compulsory sequestration, is discussed.
Abstract: The purpose of this article is to consider the impact of some of the provisions of the National Credit Act [1] (the NCA) on sequestration applications in the form of applications for voluntary surrender, as well as compulsory sequestration. This matter is of particular relevance in view of two recent cases: in Ex parte Ford [2] the court refused to grant a sequestration order following an application for voluntary surrender since the applicant-debtors did not, according to the court, avail themselves adequately of debt relief measures provided for by the NCA where the bulk of the debt consisted of credit agreements regulated by the NCA; and in a more recent judgment, Investec Bank Ltd v Mutemeri , [3] the respondent-debtors, namely the consumers, opposed an application for compulsory sequestration on the basis that the application for debt restructuring pursuant to debt review in terms of the NCA barred the applicant from proceeding with the application for compulsory sequestration, since they argued that such an application amounted to debt enforcement. This discussion therefore considers the impact of the debt relief remedies and certain special provisions that apply to debt enforcement in terms of the NCA on sequestration procedures provided for in the Insolvency Act [4] in view of the above judgments.
14 citations
TL;DR: The concept of public trusteeship as it is embodied in South African legislation encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole.
Abstract: The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept, that of "public trusteeship", to South African jurisprudence. The concept of "public trusteeship" as it is embodied in South African legislation encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole. In the quest to demystify the incorporation of the concept of "public trusteeship" in South Africa, this article, as a first tentative step, focuses solely on the public trust doctrine as it functions in American jurisprudence. It is the aim of this article to give a thorough theoretical exposition of the development and application of the public trust doctrine in American jurisprudence in order to provide the South African scholar with a perspective on a legal construct founded on the philosophical notion that governments exercise a "fiduciary trust" on behalf of their people.
13 citations
TL;DR: The 2010 crisis and recovery act aims at speeding up decision-making on a wide variety of activities, hoping that after the financial and economic crisis has passed, development projects can immediately be carried out without any delay caused by legal procedures in court or elsewhere as mentioned in this paper.
Abstract: In the Netherlands, the 2010 Crisis and Recovery Act aims at speeding up decision-making on a wide variety of activities, hoping that after the financial and economic crisis has passed, development projects can immediately be carried out without any delay caused by legal procedures in court or elsewhere. The Act meets great criticism for many reasons: it allegedly curtails citizen's procedural rights because it focuses almost exclusively on environmental standards as "obstructing" standards that need to be removed, and it infringes international and European Union law. In this note, the legal critique on the Act is analysed. The conclusion is that the sense of urgency surrounding the design of legal measures to address the economic crisis enables the legislature to implement innovations and long-time pending amendments to existing legislation. Most issues have however not been fully or properly considered. Many legal questions will arise when implementing the Act, which will retard rather than expedite projects. It is difficult to predict whether the positive effects of the Crisis and Recovery Act would outweigh the negative aspects. Much depends on the manner in which the authorities will actually apply the Act. Should they implement the Act to its full potential, the effect of the Act in sum will be negative. In that case, the Act may help the economy to recover, but it will bring about a crisis in the legal system. It will, in all probability, also not contribute to sustainable development.
13 citations
TL;DR: In this paper, the whole team of RELIGARE invited me to a lecture at one of the top three law schools of the country, the University of the Queen Mary, London.
Abstract: First, let me thank Prof Marie-Claire Foblets, Dr Prakash Shah and the whole team organising RELIGARE for inviting me to speak tonight at one of the top three law schools of the country. Well done, Queen Mary! It is also a special delight to thank you, Prof Roger Cotterrell, for being our chair tonight and to express my gratitude for your generous introduction.
11 citations
TL;DR: In this paper, an analysis of selected Article XXIV provisions and the SADC Trade Protocol provisions is undertaken in trying to establish this compliance, and the extent to which the Protocol on Trade and free trade area comply with WTO rules.
Abstract: Article XXIV of the General Agreement on Tariffs and Trade (GATT) lays down the legal principles with which regional trade agreements have to conform. Based on these principles, WTO members have the mandate to determine the legality of Regional Trade Agreements (RTAs) under the GATT. Article XXIV permits both regional and bilateral preferential trade agreements leading to the formation of customs unions and free trade areas, and seeks to integrate them in the multilateral trading system envisioned for the world. SADC is an RTA created under this Article. Notwithstanding the controversies surrounding the provisions and interpretation of Article XXIV, this paper seeks to establish the extent to which the SADC Protocol on Trade and free trade area comply with WTO rules. An analysis of selected Article XXIV provisions and the SADC Trade Protocol provisions will be undertaken in trying to establish this compliance.
9 citations
TL;DR: In this paper, the authors discuss the legal issues arising and the potential of such an initiative to provide consumer protection for the low-literate and other vulnerable holders of rights in low-cost housing which has been disposed of by private owners.
Abstract: Low-cost housing which has been disposed of by private owners is extremely difficult for conveyancers to register. The law as it stands is often incapable of giving effect to the business transactions of the poor, thereby creating insecurity of tenure nationwide. The Land Titles Adjustment Act 111 of 1993 is currently the only legislation capable of dealing with this impasse. The Overstrand Municipality has provided the staff and infrastructure to run a pilot project under the Act, for which it is awaiting confirmation from the Department of Rural Development and Land Reform. This article discusses the legal issues arising and the potential of such an initiative to provide consumer protection for the low-literate and other vulnerable holders of rights.
TL;DR: In this article, the biochemical nature of DNA, at DNA profiling and its use in criminal trials, and at the processes of DNA collection and analysis in the Biology Unit of the Forensic Science Laboratory of the South African Police Service.
Abstract: DNA evidence is currently at the forefront of the arsenal of evidence employed in criminal trials. To ensure its optimum use in criminal proceedings, it is imperative that the legal fraternity is properly conversant with the scientific basis and presentation of such evidence, as well as with its potential pitfalls. In an effort to provide the legal profession with a background to this complex and useful type of evidence, this article looks at the biochemical nature of DNA, at DNA profiling and its use in criminal trials, and at the processes of DNA collection and analysis in the Biology Unit of the Forensic Science Laboratory of the South African Police Service. The presentation of DNA evidence in court is then evaluated and the future of DNA evidence, including legislative reform, and the creation of a DNA database are discussed.
TL;DR: The role of the actuary is to guide the court in the calculations to be made as mentioned in this paper and to give detailed reasons if any assumptions or parts of the calculations made by the actuer are rejected.
Abstract: In assessing delictual damages the plaintiff is burdened with the duty to prove loss with a preponderance of probability, including uncertain future loss. In quantifying such a claim an actuary is often used to make actuarial calculations based on proven facts and realistic assumptions regarding the future. The role of the actuary is to guide the court in the calculations to be made. Relying on its wide judicial discretion the court will have the final say regarding the correctness of the assumptions on which these calculations are based. The court should give detailed reasons if any assumptions or parts of the calculations made by the actuary are rejected. It should preferably refrain from making its own calculations if an actuary is involved and should rather instruct the actuary to do recalculations if necessary. It does, however, fall within the wide discretion of the court to make a general contingency adjustment after the basic calculations have been accepted. In assessing delictual damages it is the duty of the court to ensure that both objective and subjective factors are considered in such a manner that the assessment may be regarded as an application of "fair" mathematics.
TL;DR: In this paper, the authors explored the protection of expressions of folklore within the right to culture in Africa by considering three issues: increased understanding of culture in national constitutions and the recognition that customary law is a manifestation of the right of culture; an expanded understanding of the substantive content of the article 15(1) of the International Covenant for Economic, Social, and Cultural Rights as part of the rights of indigenous peoples, marked significantly by the 2007 United Nations Declaration of the Rights of Indigenous People, and demonstrated how a human rights regime may assist in overcoming some of the deficiencies in the
Abstract: This paper explores the protection of expressions of folklore within the right to culture in Africa by considering three issues, which are the increased understanding of the right to culture in national constitutions and the recognition that customary law is a manifestation of the right to culture; an expanded understanding of the substantive content of the article 15(1) of the International Covenant for Economic, Social and Cultural Rights as part of the right to culture; and the recognition of the rights of indigenous peoples marked significantly by the 2007 United Nations Declaration of the Rights of Indigenous People. The paper demonstrates how a human rights regime may assist in overcoming some of the deficiencies in the national protection of expressions of folklore in Africa.
TL;DR: In mid-2006, new regulations governing environmental impact assessment were published in terms of the National Environmental Management Act 107 of 1998 as discussed by the authors, which had proved inadequate not because of any inherent deficiency, but because they were never properly implemented and instead subjected to much inaccurate criticism.
Abstract: In mid-2006, new Regulations governing environmental impact assessment were published in terms of the National Environmental Management Act 107 of 1998. It is argued in this article that the old Regulations under the Environment Conservation Act 73 of 1989, which were replaced, had proved inadequate not because of any inherent deficiency, but because they were never properly implemented and because they were instead subjected to much inaccurate criticism. The article then canvasses the old Regulations and considers criticisms thereof, before canvassing the new Regulations and assessing differences between the old and the new. Various specific concerns and potential shortcomings are raised and considered; and various interpretations are offered of problematic provisions. A prognosis for the success and/or failure of the new Regulations is then put forward in the context of the South African government's present approach to economic growth, environmental protection and the enforcement of environmental legislation. Finally, it is argued that there are danger signs that the new Regulations will be as misunderstood and misapplied as were the old Regulations and that the fundamental principles of the National Environmental Management Act are likely not to be adhered to in the implementation of the new Regulations.
TL;DR: In this article, 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.
Abstract: 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. Keywords : Rule of law; founding values; executive power; procedural fairness; legality; rationality; non-arbitrariness; Masethla; pharmaceutical manufacturers.
TL;DR: In this paper, a comparative analysis of American and European, as well as international legal regulations on patent law and traditional knowledge has been carried out for the protection of plant variety and plant genetic resources.
Abstract: As diseases continue to spread around the globe, pharmaceutical and biotech companies continue to search for new and better drugs to treat them Most of these companies have realised that useful compounds for these purposes may be found in the natural resources that indigenous and local communities use And yet, even though the importance of these biological resources to global health and economic livelihood is well recognised, the legal ownership and control of this traditional knowledge is still very controversial This article undertakes a comparative analysis of American and European, as well as international legal regulations on patent law and traditional knowledge Key questions include: What is traditional knowledge? How have the national patent laws of these countries treated the protection of plant variety and plant genetic resources? What are the existing international standards for patents, and what implications do they have for protecting traditional knowledge? And finally, what protection systems are emerging for the future?
TL;DR: In this article, the authors explored the proposition that in the face of probably one of the most unequivocal forms of constitutional review in a modern day state, legislation in South Africa has since 27 April 1994 grown in status and stature, and has assumed an unprecedented role in our constitutional democracy.
Abstract: This note explores the proposition that in the face of probably one of the most unequivocal forms of constitutional review in a modern day state, legislation in South Africa has since 27 April 1994 grown in status (and stature) nonetheless, and has assumed an unprecedented role in our constitutional democracy. First, it is shown how constitutional review with the necessary judicial self-restraint has instilled respect for legislation in the context of and with reference to the separation of powers. Second, it is shown that and how statutes have become (subsidiary) allies to the Constitution and have been standing the realisation of constitutional values in good stead. Finally, it is argued that the constitutional requirement of popular participation in legislative deliberation has also added to the esteem for legislation in our constitutional democracy.
TL;DR: The pre-admission character screening of lawyers seems not to be effective any more as mentioned in this paper and the question may be asked why some lawyers who have been found to be "fit and proper" do not act as such.
Abstract: An important requirement for admission as an attorney or advocate is to be a "fit and proper" person. Lawyers are also struck from the respective rolls of advocates or attorneys if they cease to be "fit and proper". This requirement of being a "fit and proper" person is not defined or described in legislation. It is left to the subjective interpretation of and application by seniors in the profession and ultimately the court. In the apartheid years this requirement was applied arbitrarily but today the question may be asked why some lawyers who have been found to be "fit and proper" do not act as such. The pre-admission character screening of lawyers seems not to be effective any more. Post- admission moral development is imperative.
TL;DR: In this paper, the role of information and knowledge management in providing an effective legal service to clients and compares foreign and South African law firms' information management related contexts, challenges and benefits.
Abstract: Global and national law firms alike operate in a challenging business environment and managing the firm's information and knowledge assets is increasingly viewed as a key factor in efficient legal service delivery. In legal practice, information management technologies, for example intranets, portals, workflow management systems, document and content management systems, case and project management systems and online dispute resolution systems are becoming important means of legal service delivery. The reason for applying information management technologies and implementing knowledge management strategies in law firms is not only to satisfy clients' growing need for a trusted online platform to interact with legal service providers, but for law firms to capitalise on their intellectual assets, to continuously modernise legal practice management, to empower lawyers, to increase productivity, to use time efficiently, to transfer skills and knowledge from senior to junior professionals, to improve service delivery and to gain competitive advantage. This article firstly reviews the role of information and knowledge management in providing an effective legal service to clients and compares foreign and South African law firms' information management related contexts, challenges and benefits. Secondly, it presents the findings of a survey conducted at South African law firms based on their knowledge management practices. The aim of the article is to provide insights into law firm knowledge management and its effect on providing legal services in an online business environment.
TL;DR: The possibility of early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences The South African Correctional Services Act No111 of 1998 deals with the release of prisoners on parole This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole as discussed by the authors.
Abstract: The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences The South African Correctional Services Act No111 of 1998 deals with the release of offenders on parole This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole
TL;DR: In this article, the authors investigated the use of cell-phone technology for obtaining information about off-register transfers in land as are commonly undertaken by the urban poor in South Africa.
Abstract: This article investigates the concept of using cell-phone technology for obtaining information about unofficial (off-register) transfers in land as are commonly undertaken by the urban poor in South Africa. Since the introduction of social housing programmes in South Africa after the democratic elections in 1994, mass land distribution and housing projects have been undertaken. Formal transfer of these properties has been discouraged by policy (such as a moratorium on transfers for a period of years), and the inaccessibility of land professionals and formal processes to the poor. From the disuse of formal transfer mechanisms one can conclude that these fail, at least in part, to meet the needs of this segment of society. Cell- (mobile) phone technology penetrates urban poverty more than other interactive technologies such as the internet, largely due to the lack of access to computers and the 'digital divide'. The aim of this article is exploratory. It investigates the potential use of cell-phone technology as a means to inform authorities that a transfer of property has taken place informally or semi-formally. Such information could pave the way for a process of formal registration and hence aid the upkeep of the deeds registration system. Research into the potential use of the cell-phone as an information and communication technology (ICT) tool of land administration, particularly in the developing world, is undertaken. It is envisaged that a more detailed investigation will follow, which will include an analysis of organisational and legislative capacity. Further study in which the use of cell-phone technology in land administration is tested, taking into consideration structural/organisational factors as well as socio-economic and cultural factors and motivating factors for use, may be required.
Journal Article•
TL;DR: In this paper, a contextualised choice model is developed that distinguishes between need-based claims and those involving property disputes, and holds that the "choice argument" could at best be relevant regarding the latter category of claims, while the existence of a reciprocal duty of support is sine qua non for any need based claim to succeed.
Abstract: The article considers certain critical failings of the so-called "choice argument" (that is the view that, by opting to cohabit in a life partnership rather than marry or enter into a civil partnership, a life partner is not entitled to the legal benefits provided by matrimonial [property] law) as it was applied to opposite-sex life partnerships by the majority of the Constitutional Court in Volks v Robinson.[1] On the basis of Canadian jurisprudence, a "contextualised choice model" is developed that distinguishes between need-based claims and those involving property disputes, and holds that the "choice argument" could at best be relevant regarding the latter category of claims, while the existence of a reciprocal duty of support is sine qua non for any need-based claim to succeed. These findings are applied to registered and unregistered domestic partnerships under the draft Domestic Partnerships Bill, 2008, with the aim of suggesting certain amendments to the Bill in the hope of ensuring a more consistent and principled legal position once the Bill is enacted.
TL;DR: In terms of the National Credit Act, a credit provider may conclude a credit agreement with a consumer only after he has made a proper financial assessment and concludes that the consumer will be able to satisfy all of his obligations under all his credit agreements as discussed by the authors.
Abstract: In terms of the National Credit Act a credit provider may conclude a credit agreement with a consumer only after he has made a proper financial assessment and concludes that the consumer will be able to satisfy all of his obligations under all his credit agreements. However, a practice of not conducting this affordability assessment has evolved amongst certain credit providers where the credit agreement involved is a suretyship agreement. This article investigates whether or not a suretyship agreement is indeed a credit agreement in terms of the National Credit Act , and if a financial assessment should be conducted in the case of a suretyship agreement. The main aim of the article is to try to identify what the concept of a “credit guarantee”, as defined in the Act, encompasses and ultimately if the common-law contract of suretyship falls under this definition. Our conclusion is that “credit guarantee” is as vague and problematic as many of the other definitions in the Act. If one reads the Act in its entirety (including the regulations to the Act), it seems unlikely that the legislature intended not to regulate common-law suretyships also.
TL;DR: Despite the broadening of locus standi in environmental cases by both Section 38 of the Constitution of the Republic of South Africa, 1996, and Section 32 of the National Environmental Management Act 107 of 1998, two recent cases suggest that the pre-constitutional approach to locus standing still holds sway in our Courts as mentioned in this paper.
Abstract: Despite the broadening of locus standi in environmental cases by both Section 38 of the Constitution of the Republic of South Africa , 1996, and Section 32 of the National Environmental Management Act 107 of 1998, two recent cases suggest that the pre-constitutional approach to locus standi still holds sway in our Courts. Moreover, failure to recognise the environmental right in Section 24 of the Constitution may be an impediment to applicants' ability to bring an interdict application successfully. Correct use of the relevant constitutional provisions ought to obviate such problems, but alternatives are suggested. In the course of the article, it is suggested that the rule in Patz v Greene is no longer relevant and should be consigned to the history books.
TL;DR: In this paper, the authors examine the right to social assistance for households living with HIV/AIDS in South Africa, focusing on the impact of this pandemic on households' access to Social Assistance benefits.
Abstract: The purpose of the article is to examine the right to social assistance for households living with HIV/AIDS in South Africa. In particular, the article focuses on the impact of this pandemic on households' access to social assistance benefits in the wake of the HIV/AIDS pandemic, which has wrought untold sorrow and suffering to the overwhelming majority of households in South Africa.
The article analyses the consequences of HIV/AIDS in relation to households' support systems, care and dependency burdens, and the extent to which the household members either acknowledge the illness (enabling them to better engage with treatment options) or alternatively, deny its existence. The article commences by reviewing the literature concerning the effects and social impact of HIV/AIDS on the livelihoods of households and their families. The social reciprocity that underpins households' livelihoods is briefly recapitulated. The article concludes that, while recent policy developments are to be welcomed, the current South African legal system of social security does not provide adequate cover for both people living with HIV/AIDS and their families. More remains to be done in order to provide a more comprehensive social security system for the excluded and marginalised people who are living with HIV/AIDS and their families.
TL;DR: In this article, the potential significance of updating registration practices in resolving some of the issues about tenure security in a transformative context is examined, and the importance of good governance in the context of land administration and its impact on intended reforms is scrutinised.
Abstract: This paper examines the potential significance of updating registration practices in resolving some of the issues about tenure security in a transformative context. It deals with the importance of good governance in the context of land administration and considers its impact on intended reforms. Land registration practice as an indicator of the quality of governance is scrutinised. The debate about the kinds of interests to be served by tenure security reforms is considered. A comparative law analysis demonstrates how demands for electronification, placed on registration systems, can reshape the process of securing tenure. The paper then highlights issues for further investigation and discussion.
TL;DR: In this article, the authors 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 should bar sequestration proceedings in the form of an application for the compulsory sequestration of a consumer's estate.
Abstract: 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.
TL;DR: Van der Vyver et al. as mentioned in this paper argued that the South African nation comprises perhaps the most diverse plural composition in the entire world and is furthermore known for the polarization of factions of the population.
Abstract: The South African nation comprises perhaps the most diverse plural composition in the entire world and is furthermore known for the polarization of factions of the population. [1] This raises the question how to bring about and to maintain the peaceful co-existence of the cultural, religious and linguistic varieties within its fold. Several models to cope with group-related tensions within a political community have been put to the test in different countries of our troublesome times. Nepal is a most recent case in point. * JD van der Vyver. BComm, LLB, Honns BA (PU for CHE) LLD (Pret). IT Cohen Professor of International Law and Human Rights, Emory University School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria (JVAND02@emory.edu). [1] See S v Makwanyane 1995 3 SA 391 (CC) para 308 (Mokgoro J referring to South Africans having "a history of deep division characterised by strife and conflict"); Du Toit v Minister for Safety and Security 2009 6 SA 128 (CC) para 17 (Lange CJ stating: "The South African nation was for decades a deeply divided society characterised by gross violations of fundamental human rights").