Showing papers in "Potchefstroom Electronic Law Journal in 2019"
TL;DR: In this article, the possibility of including indigenous women in government and decision-making processes in Cameroon in the hope that they may be involved in key decision making processes that affect them, thereby reducing their economic and social vulnerability.
Abstract: Land is an essential resource that serves as a means of subsistence for millions of people in the world and indigenous communities and women in particular. Most indigenous societies' survival is closely tied to land. In Cameroon, indigenous women are the backbone of food production in their communities. That makes access to land important, as it is a significant source of wealth and power for indigenous peoples in general and indigenous women in particular. While women all over the world encounter gender-based discrimination in relation to the control and ownership of land, indigenous women face triple discrimination on the basis of their gender (as women), their ethnicity (as indigenous peoples) and their economic class (economically poor). They are often dehumanised, degraded and subjected to treatment as second-class human beings despite the existence of national legislation that discourages such practices. This paper interrogates the possibility of including indigenous women in government and decision-making processes in Cameroon in the hope that they may be involved in key decision-making processes that affect them, thereby reducing their economic and social vulnerability. It concludes with some thoughtful recommendations on policy reform aimed at ensuring access to land for indigenous women as well as socio-economic justice in its broadest sense.
10 citations
TL;DR: In this paper, the authors argue 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.
Abstract: 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.
10 citations
TL;DR: The authors argue that colonialism endowed Africans with a new socio-legal identity, which questions the mainstream conceptualisation of customary law into "official" and "living" versions, and that the law curriculum should reflect this new identity and acknowledge the self-sustaining legacy of colonialism as a reality check on decolonisation.
Abstract: Fees-related protests in South African universities have pushed the decolonisation of the law curriculum to the front burner of academic discourse. As part of the curriculum, African customary law was marginalised in the courts, distorted by policy makers, and largely labelled as unfriendly to women and younger male children in issues of marriage, property, and succession. However, this normative system is shaped by the manner in which people adapt norms with agrarian origins to the socio-economic changes caused by colonial rule. In this historical context, scholars focus more on conflict of laws than on people's adaptation of indigenous norms to socioeconomic changes. So, in what ways should universities handle the pedagogy of African customary law? This article argues that colonialism endowed Africans with a new socio-legal identity, which questions the mainstream conceptualisation of customary law into "official" and "living" versions. Accordingly, the law curriculum should reflect this new identity and acknowledge the self-sustaining legacy of colonialism as a reality check on decolonisation. As the article suggests, re-conceptualising African customary law offers a framework for legal integration, especially in South Africa.
6 citations
TL;DR: In this paper, the authors provide a legal perspective on the interplay between social media use and employment and provide guidelines on how educators can avoid the pitfalls that make social media misuse potentially hazardous to their employment.
Abstract: In this article, the author provides a legal perspective on the interplay between social media use and employment. The unique characteristics of social media are identified in order to frame the article before a number of considerations with regard to employment relationships that impact on deciding social media misconduct cases are deliberated upon. Thereafter, the author reflects on the implications of social media transgressions for educators' professions and contemplates the forms that social media misconduct by South African educators can take, with specific focus on defamation. Before the article reaches its conclusion, social media evidence and the impact of the unique characteristics of social media on users' legitimate expectations of privacy are also considered. The article concludes with a few guidelines on how educators can avoid the pitfalls that make social media use potentially hazardous to their employment.
6 citations
TL;DR: In this article, the Eastern Cape Local Division in Mthata heard a claim by Winnie Madikezela-Mandela that her customary marriage to former President Nelson Mandela continued to exist until his death, despite the dissolution of their civil marriage.
Abstract: In 2016 the Eastern Cape Local Division in Mthata heard a claim by Mrs Winnie Madikezela-Mandela that, amongst other things, her customary marriage to former President Nelson Mandela continued to exist until his death, despite the dissolution of their civil marriage. Not long thereafter, in 2017, former President Jacob Zuma's daughter made headlines by claiming half of her soon-to-be-ex-husband's multimillion-rand estate despite the couple’s having entered into a valid ante-nuptial contract. The claim was that her preceding customary marriage had not been accompanied by an ante-nuptial contract, and therefore the marriage was in community of property. These high-profile cases raise the fundamental legal question: what effect does a civil marriage between parties have on the parties' customary marriage to each other?
Historically the subsequent civil marriage terminated the customary marriage, as such marriages were not legally recognised in South Africa. The Recognition of Customary Marriages Act 120 of 1998 allows for such dual marriages without specifying the consequences thereof. Most commentators have interpreted the provisions to perpetuate the historical position; the civil marriage terminates the customary marriage. While this appears distasteful, the rationale is legal certainty and accords with the recommendations of the South African Law Commission. Furthermore, alternative customary dispute resolution mechanisms are still available to the parties, who are unlikely to suffer prejudice under the interpretation. In addition, given the social reality in which dual marriages are conducted and how they are perceived by parties, parties should be allowed to conclude an ante-nuptial contract after their customary marriage but before their civil marriage to regulate the proprietary consequences of their marriage.
5 citations
TL;DR: The authors explores the background to the decision in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA), some of its conceptual content and its broader implications for future jurisprudence in regard to the interpretation of documents.
Abstract: This article explores the background to the decision in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA), some of its conceptual content and its broader implications for future jurisprudence in regard to the interpretation of documents. It illustrates the reality that in the past interpretation in different areas of the law was undertaken in accordance with differing standards even though all areas involved the interpretation of language in common everyday use, and questions the need to approach issues of interpretation in a way different from that used in conventional language. The internal inconsistencies of past authority are highlighted, as well as the trend in South African jurisprudence and overseas towards a single, simple and coherent approach to interpretation. The importance of recognising the role of both text and context is stressed, and the identification of relevant context in interpreting contracts and statutes is addressed. The article identifies two animating principles underlying the approach to interpretation in Endumeni, viz.: the discipline it imposes on judges to explain their decisions in regard to interpretation rather than starting with an a priori meaning and buttressing it with authority, and the desirability of a single, clear and simple standard by which to approach issues of interpretation.
5 citations
TL;DR: In this paper, the authors examine the cases which have come before the courts and how these cases have been dealt with in relation to the protection of the environment and ultimately an individual's environmental rights.
Abstract: The protection of the environment from the effects of mining activities, though cardinal, has been a daunting task in Zambia. A polluted environment affects the rights of those who depend on a clean one for their survival. In remedying the pollution caused by mining activities, numerous legislative and policy frameworks have been put in place and institutions responsible for ensuring compliance operationalised. Notwithstanding such interventions, the problem of pollution emanating from mining activities has persisted. This has led individuals and spirited non-governmental organisations to bring legal actions firstly against erring mining companies for their failure to comply with environmental regulations, and secondly against the government for its failure to ensure compliance by the mining companies. The courts before whom such matters have been brought have seemingly prioritised the supposed development brought by investment in the mining sector over the environmental rights of those whose livelihood is anchored in a clean environment. The article underscores the mandate of the courts in safeguarding the environmental rights of persons whose survival is dependent on a clean environment. In doing so the article critically examines the cases which have come before the courts and how these cases have been dealt with in relation to the protection of the environment and ultimately an individual's environmental rights.
4 citations
TL;DR: In this article, the authors consider situations where there is no clear gap in the CPA such as a right without a remedy, but policy considerations call for an innovative order, and they consider the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct.
Abstract: This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time".
The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures".
3 citations
TL;DR: In this paper, a recent development in South African environmental law is the use of plea and sentencing agreements, which are potentially effective, subject to the effective monitoring of compliance and enforcement against noncompliance with the undertakings made by the accused person.
Abstract: A recent development in South African environmental law is the use of plea and sentencing agreements. The main objective of environmental law is to promote the sustainable use of natural resources while preventing pollution and ecological degradation. Grand environmental due diligence processes could achieve sustainable development; the use of criminal sanctions with sentencing agreements could be more effective. This paper answers the question whether the plea and sentencing agreements in reality achieve the objectives of environmental regulation? This study analyses this recent development by looking at selected recent cases in South Africa. The study found that plea and sentence agreements are potentially effective, subject to the effective monitoring of compliance and enforcement against non-compliance with the undertakings made by the accused person. Without institutional strengthening and effective monitoring, the plea and sentence agreement procedure remains ineffective.
3 citations
TL;DR: In this paper, the authors discuss the function of the justice system in establishing the truth and holding the perpetrators accountable in a post-conflict, transitional Cameroon, arguing that the presence of specific elements elevates this violence to the level of a serious crime in international law.
Abstract: Legal scholars and other social scientists agree that political violence comprising assaults on civil and political liberties may occur in the context of contentious politics. Unfortunately, there have been instances in history where such politics is marked by intermittent attacks against people's rights and freedoms. Such attacks occur when politics has gone sour, and there are times when the violence exceeds the bounds of what is acceptable. From the documented atrocities of Nazi Germany, the horrendous crimes of the regime of Slobodan Milosevic in the former Yugoslavia, the outrageous crimes perpetrated during the genocide in Rwanda, the shameful and despicable inhumanities inflicted on the people of Darfur in the Sudan, and the violence in post-electoral Kenya, to the bloodshed in areas like Mali, the Democratic Republic of the Congo, the Central African Republic, etc, violent conflict has punctuated world history. Added to this list of countries is Cameroon, which in the last quarter of 2016 degenerated into a hotspot of political violence in the English-speaking regions. The perpetration of political violence in Cameroon has raised serious questions that may be relevant not only to the resolution of the political problem that gave rise to the violence but also to laying the foundations of a post-conflict Cameroon that is united and honours the principles of truth, justice and reconciliation.
This paper describes some of the salient occurrences of political violence in Cameroon and argues that the presence of specific elements elevates this violence to the level of a serious crime in international law. It is argued herein that crimes against humanity may have been committed during the state action against the Anglophones in Cameroon. It is also argued that the political character of the violence, added to the scale of the victimisation and its systematic and protracted nature, qualify Cameroon as a transitional society engaged in conflict that is in need of transitional justice.
Reflecting on the extent of the suffering of the victims of such political violence, this paper discusses the function of the justice system in establishing the truth and holding the perpetrators accountable. Past instances of political violence in Cameroon have been glossed over, but in our opinion, healing a fragmented and disunited Cameroon with its history of grave violations of human rights requires that the perpetrators be held accountable, and that truth and justice should prevail. Such considerations should be factored into the legal and political architecture of a post-conflict, transitional Cameroon.
3 citations
TL;DR: In this paper, a broad overview of some human rights issues that may be relevant to living in outer space, and the role that the doctrine of effective control may play in this regard is analysed.
Abstract: The military and commercial exploitation of outer space has received increasing international attention since the United States of America announced its intention to establish an outer space military force to protect its interests in outer space. Simultaneously, the National Aeronautics and Space Administration (NASA) and private enterprises such as Blue Origin and SpaceX declared plans to colonise the Moon and/or Mars in the near future. While technology is advancing rapidly to make these objectives a reality, the international legal rules related to these developments are completely uncertain, and in some instances non-existent. It is evident that these developments may have a direct impact on the internationally protected human rights of individuals, taking into account the extremely adverse conditions in outer space and the dangers involved in creating sustainable human living conditions in outer space. International discussion of and action on these legal issues are needed urgently. As a starting point, this contribution discusses the question of whether existing international human rights instruments enjoy extra-territorial application in outer space, given the current status of outer space law. In answering the question, a broad overview is presented of some human rights issues that may be relevant to living in outer space, and the role that the doctrine of effective control may play in this regard is analysed.
TL;DR: The protection of child victims and witnesses in the criminal justice system is of vital importance, as present-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 witness that have to appear in court to testify about these crimes as discussed by the authors.
Abstract: The protection of child victims and witnesses in the criminal justice system is of vital importance, as present-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. This contribution consists of an in-depth discussion of the rights of the child victim and witness encompassed in the Constitution of the Republic of South Africa, 1996 in order to determine whether the current protection afforded to child victims and witnesses while testifying in criminal proceedings in South Africa is in line with South Africa's constitutional obligations. In this regard the general constitutional rights in the Bill of Rights relating to child victims and witnesses as well as the specific constitutional rights of child victims and witnesses in section 28 of the Constitution are discussed.
TL;DR: The National Debate on the Energy Transition as discussed by the authors was organized in 2012-2013 and its results would be integrated into a flagship energy transition act, which did happen with the adoption of the energy transition for Green Growth Act of 2015.
Abstract: 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 Energy Transition for Green Growth Act of 2015. This paper provides an overview of the organisation of this public debate and of the integration of its outcome into the Energy Transition Act. 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.
TL;DR: In this article, the authors provide guidance on some of the terms and concepts applicable to digital forensics and for the search and seizure of digital evidence, using the Criminal Procedure Act 51 of 1977 as a point of departure.
Abstract: The discipline of digital forensics requires a combination of skills, qualifications and knowledge in the area of forensic investigation, legal aspects and information technology. The uniqueness of digital evidence makes the adoption of traditional legal approaches problematic.
Information technology terminology is currently used interchangeably without any regard to being unambiguous and consistent in relation to legal texts. Many of the information technology terms or concepts have not yet achieved legal recognition.
The recognition and standardisation of terminology within a legal context are of the utmost importance to ensure that miscommunication does not occur.
To provide clarity or guidance on some of the terms and concepts applicable to digital forensics and for the search and seizure of digital evidence, some of the concepts and terms are reviewed and discussed, using the Criminal Procedure Act 51 of 1977 as a point of departure.
Digital evidence is often collected incorrectly and analysed ineffectively or simply overlooked due to the complexities that digital evidence poses to forensic investigators. As with any forensic science, specific regulations, guidelines, principles or procedures should be followed to meet the objectives of investigations and to ensure the accuracy and acceptance of findings. These regulations, guidelines, principles or procedures are discussed within the context of digital forensics: what processes should be followed and how these processes ensure the acceptability of digital evidence. These processes include international principles and standards such as those of the Association of Chiefs of Police Officers and the International Organisation of Standardisation. A summary is also provided of the most influential or best-recognised international (IOS) standards on digital forensics.
It is concluded that the originality, reliability, integrity and admissibility of digital evidence should be maintained as follows:
Data should not be changed or altered.
Original evidence should not be directly examined.
Forensically sound duplicates should be created.
Digital forensic analyses should be performed by competent persons.
Digital forensic analyses should adhere to relevant local legal requirements.
Audit trails should exist consisting of all required documents and actions.
The chain of custody should be protected.
Processes and procedures should be proper, while recognised and accepted by the industry.
If the ACPO (1997) principles and ISO/IEC 27043 and 27037 Standards are followed as a forensic framework, then digital forensic investigators should follow these standards as a legal framework.
TL;DR: In this article, the authors focus 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.
Abstract: The legal framework for spatial planning and land use management changed with the introduction of the new Spatial Planning and Land Use Management Act 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 Constitution 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.
TL;DR: In this article, the authors identify challenges in ascertaining customary law through judicial notice in the various cadres of courts operative in both Nigeria and South Africa, and elucidates the rules that guide the judge and identifies the challenges encountered in each jurisdiction based on how each law is scripted.
Abstract: The roles of the courts have become an inevitable social reality in adjudicating customary law disputes in Nigeria and South Africa. Because these courts are established and validated along positivist practice, they inevitably require the adoption of a process for ascertaining and applying customary law since the judges of these courts are not ordinarily conversant with its norms. Hence judicial notice has been adopted as one of the ways of ascertaining customary law. The conceptualisation and theoretical basis of customary law cannot be ignored in the analysis of the process of its ascertainment. Crucial to this are theories of centralism, legal pluralism and positivism. This paper therefore identifies challenges in ascertaining customary law through judicial notice in the various cadres of courts operative in both jurisdictions amid the operation of these theories and the attendant implications thereof. It elucidates the rules that guide the judge and identifies the challenges encountered in each jurisdiction based on how each law is scripted. It also contends that while positivist rules and procedure regulate how customary law can be ascertained and applied by the courts, its application must however be limited to the point where it threatens the essence of customary law.
TL;DR: In this article, the authors explore several issues emerging in the discourse about the recording of indigenous law by drawing on several examples of my research and work with indigenous law in Canada, and analyse and articulate the law and legal processes from two indigenous oral histories.
Abstract: In this paper, I explore several issues emerging in the discourse about the recording of indigenous law by drawing on several examples of my research and work with indigenous law in Canada. This is an important inquiry because there are limiting and disturbing fundamentalist premises underlying the debate regarding the recording of indigenous law. To take up these issues, I analyse and articulate the law and legal processes from two indigenous oral histories. The question under consideration is whether by this recording and analysis, I have somehow damaged Gitxsan law. In other words, did I break it?
TL;DR: In this paper, it is argued that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis.
Abstract: This contribution deals with the question of whether a judgment from a mainstream court dealing with customary law can be regarded as authority and thus as a recording of a customary rule or rules. When a mainstream court develops customary law to promote constitutional values or strikes customary law down for want of constitutionality, it creates new rules which are written down but which can easily be changed when society brings it to court and convinces the court that the rule needs to be changed. It is my contention that case law is a binding source of law, including customary law, which must be followed until such time that it is either absorbed into legislation or amended by a subsequent decision in terms of the principle of stare decisis. It gives us some measure of assurance as to the law to be followed. The high number of customary law disputes taken to a court of law is confirmation that traditional communities are embracing the power of the courts to settle their disputes. The judgments of these courts inevitably become the origins of customary rules that they develop and can thus be regarded as piecemeal recording of (living) customary law.
TL;DR: Van Rensburg et al. as mentioned in this paper investigated the application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements, and concluded that renvois can be used in double tax agreements.
Abstract: CITATION: Jansen van Rensburg, E. 2019. The application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements. Potchefstroom Electronic Law Journal, 22:1-32, doi:10.17159/1727-3781/2019/v22i0a4402.
TL;DR: In this article, it is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike.
Abstract: The Labour Relations Act 66 of 1995 (hereafter the LRA) was promulgated to redress the injustices and inequality within labour relations. It seeks to do so through four objectives which give effect to the LRA's purposes of transformation within the labour relations framework. One of these objectives is to promote orderly collective bargaining. It is envisaged that if parties engage in collective bargaining, then disputes should be resolved speedily and amicably without having employees resort to strikes and employers to lock-outs. This in turn would ensure that production within the workplace continues without interruption. Thus, the workdays lost would be decreased and productivity would be increased. One of the main features of the LRA is the endorsement and regulation of strike action. Employers have always possessed greater authority than employees due to their managerial prerogative, thus strike action is viewed as a necessary way of levelling the playing field between employers and employees in the collective bargaining framework. Strike action is regarded as forming part of the collective bargaining framework. It has been acknowledged that without the threat of strike action, collective bargaining would be futile. However, strike action in South Africa has been increasingly alarming over recent years. This is primarily due to the manner in which employees are asserting their demands. There has been an undeniable increase in the intensity of violence, intimidation, harassment, destruction to property and civil unrest evident in strikes. Even more disturbing is that these strikes have not been contained within the employment relationship; instead, the ramifications of disorderly strikers have caused severe consequences for innocent members of society and the country as a whole. This article highlights the violent context in which strikes take place and the necessity of limiting potential violence. In doing so, this article seeks to consider the viewpoints of two judgments, Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC), which have addressed the issue of whether non-unionised members are required to provide separate notices of their intention to strike. It is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike. Thus, an expectation of order would be instilled which in turn would fulfil one of the objectives of the LRA, which is to promote orderly collective bargaining.
TL;DR: In this paper, the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct (e.g., a positive, triggering, wrongful act or event) in English tort law, American tort law and French law.
Abstract: In this contribution the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct in English tort law, American tort law and the French law of delict.
Fundamental similarities and differences among the different legal systems must be considered. France and South Africa follow a generalising approach to determining a delict while English and American law have a system of separate torts.
Even though English and American law do not explicitly refer to the requirement of conduct in tort law, it is generally implicitly required. This is the case whether one is dealing with the tort of negligence or the intentional torts. In French law too, a fait generateur (a generating, triggering, wrongful act or event) generally must also be present in order to ground delictual liability. The concept of fait generateur is broader than the concept of conduct found in the other jurisdictions in that it extends beyond what is regarded as human conduct. The conduct in all the jurisdictions may be in the form of a commission (a positive, physical act or statement) or an omission (a failure to act). The requirement that conduct must be voluntary is generally found in South African, English and American law (with an exception applying to mentally impaired persons) but not in France. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. In all the above-mentioned jurisdictions, it would generally be unreasonable to hold the wrongdoer liable in delict or tort law if the omission or commission does not qualify as some form of conduct. Thus the influence of reasonableness on the element of conduct in all the above-mentioned jurisdictions is implicit.
TL;DR: In this paper, the authors compared the South African insolvency law with the Kenyan insolvability law and proposed a reform of the Kenyan Insolvency Act 18 of 2015 in order to influence the possible reform of insolventcy law in South Africa.
Abstract: 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 National Credit Act 34 of 2005 or administration orders in terms of the Magistrates' Court Act 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 Insolvency Act 18 of 2015 in order to influence the possible reform of insolvency law in South Africa. Like the South African Insolvency Act, the old Kenyan Bankruptcy Act (Cap 53 of the Laws of Kenya) also did not have alternatives to bankruptcy. The old Kenyan Bankruptcy Act, however, contained a provision on schemes of arrangement and compositions. The Kenyan Insolvency Act 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.
TL;DR: In this paper, the authors focus on the question whether the entitlement to "enter" the land to which a specific prospecting or mining right relates automatically includes the ancillary right to be granted access over the property of others in order to enter the designated prospecting and mining area.
Abstract: A new mineral law regime was introduced when the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) commenced. Common law mineral rights were abolished and replaced by statutorily created rights to minerals. Prospecting rights and mining rights granted in terms of the MPRDA entitle their holders, amongst other things, to enter the designated prospecting or mining area in order to commence with and conduct prospecting or mining activities. This contribution focusses on the question whether the entitlement to "enter" the land to which a specific prospecting or mining right relates automatically includes the ancillary right to be granted access over the property of others in order to enter the designated prospecting or mining area. It is important to determine the source or origin of the right to access in the new regime and to differentiate between "access" and "entry". It would not be just or justifiable summarily to accept that legal principles that developed under a completely different regime apply unchanged in a new regime.
TL;DR: In this article, a re-categorisation of public procurement may hold many advantages for the regulation of construction procurement law as a unique form of procurement in South Africa, and the definition of construction works is thus important when establishing what is procured in construction procurement.
Abstract: 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 Constitution of the Republic of South Africa, 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.
TL;DR: In this paper, the authors consider the general use of fixed-term contracts and address selected issues pertaining to the 2014 amendments to the Labour Relations Act 66 of 1995 in as far as these contracts are concerned.
Abstract: A fixed-term employment contract is an example of atypical or non-standard employment. Fixed-term appointments can have many benefits when utilised for proper and lawful reasons. These contracts are frequently abused, however, by unscrupulous employers and are generally regarded as providing less security to employees than permanent employment. The article considers the general use of fixed-term contracts and addresses selected issues pertaining to the 2014 amendments to the Labour Relations Act 66 of 1995 in as far as these contracts are concerned. The article also considers the potential effect these amendments might have on common historic problems associated with fixed-term contracts and highlights certain unresolved problem areas and uncertainties.
TL;DR: In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African Common Law of contract.
Abstract: In this article, a comparison is drawn between the role of good faith in the development of the Roman law of contract and the emerging role of ubuntu in the South African common law of contract. Firstly, it is shown how the Romans realised that their existing formal and rigid laws could not address the changing legal needs of the community due to the influx of foreigners (especially foreign traders) into Rome. In reaction to the changing commercial environment, they introduced flexible legal procedures and a more normative approach to these legal transactions to achieve fairness and justice between the contracting parties. This worked so well that the new flexible procedures and normative principles were transferred to the existing formalistic law. Gradually the existing ius civile became subject to a more normative interpretation in the interests of justice through the use of the open norm of good faith. It is argued that in a similar way, ubuntu can be used to address legal pluralism in the South African legal system, and its application as an underlying constitutional value could result in the better use of the open norm of good faith to address contractual unfairness.
TL;DR: The draft Children's Amendment Bill, 2018 seeks to address problematic aspects of the Children's Act 38 of 2005 as mentioned in this paper, but the draft Bill fails to address several of the uncertainties flowing from the current wording of section 21 and even creates additional uncertainties.
Abstract: In terms of section 21 of the Children's Act 38 of 2005, an unmarried father acquires full parental responsibilities and rights in respect of his child if he lives with the child's mother in a permanent life-partnership when the child is born. He also acquires full parental responsibilities and rights if, regardless of whether or not he has ever lived with the child's mother, he consents or successfully applies to be identified as the child's father or pays damages in terms of customary law, and contributes or attempts in good faith to contribute to the child's upbringing and maintenance for a reasonable period. Several provisions of section 21 are unclear and/or unsatisfactory. The draft Children's Amendment Bill, 2018 seeks to address problematic aspects of the section. Unfortunately, the proposed amendments to section 21 leave one disappointed. Although some of the amendments are welcome, the draft Bill fails to address several of the uncertainties flowing from the current wording of section 21 and even creates additional uncertainties. The wording of many of the amendments has not been properly thought through, and the draft Bill fails to address the key question of whether the requirements in section 21(1)(b) operate conjunctively or independently.
TL;DR: Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfect example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law as discussed by the authors.
Abstract: The correct application of customary law post constitutionalism continues to be the subject of much judicial and academic deliberation. This is especially true where the existence and/or scope of customary rights and cultural practices are not well defined in a specific case. Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) presents a perfect example of the dissonance between the recognition of customary law by the Constitution of the Republic of South Africa, 1996 and the regulation of rights and cultural practices emanating from customary law. The case grapples with the meeting point of customary rights and customs and the need to preserve the environment. This intersection is considered in view of earth jurisprudence as an emerging legal thought topic in environmental law. On the whole, the decision of the SCA demonstrates encouraging signs of an appreciation of customary law as deserving of an equal place on the legal podium.\
TL;DR: Tunisian family law underwent, four waves of reform as mentioned in this paper, the first wave started during the French Protectorate, the second wave started in the 1950's with the codification of Tunisia's family law, which introduced women-friendly legislation.
Abstract: From the time when women's rights were not placed high on the agenda of any state to the time when women's rights are given top priority, Tunisia's gender-friendly legislation requires a fresher look. One would be forgiven for thinking that Tunisia's reforms started after they gained independence from France in the 1950's. In fact, it was during the French Protectorate that reformers started rumours of reform, arguing amongst other issues for affording women more rights than those they were granted under sharia law, which governed family law in Tunisia. After gaining its independence, Tunisia promulgated the Code of Personal Status, which was considered a radical departure from the sharia. It is considered to be the first women-friendly legislation promulgated in the country. It could be argued that Tunisian family law underwent, four waves of reform. The first wave started during the French Protectorate. The second wave started in the 1950's with the codification of Tunisia's family law, which introduced women-friendly legislation. The third wave started in the 1990's with changes to the Code of Personal Status, and the latest wave commenced in 2010. In this article, I analyse the initial, pioneering phases of the reforms resulting from the actions of a newly formed national state interested in building a free society at the end of colonial rule, as well as reforms that have taken place in the modern state since the Arab uprising in Tunisia. As a result of the various waves of reforms, I argue that Tunisia should be seen as the vanguard of women-friendly legislation in the Arab world.
TL;DR: In this article, the authors analyse the requirements of the duty imposed on directors to act for a proper purpose as provided in section 76(3)(a) of the 2008 Act (Companies Act 71 of 2008) whenever they distribute company money and/or property.
Abstract: This paper seeks to critically analyse the requirements of the duty imposed on directors to act for a proper purpose as provided in section 76(3)(a) of the 2008 Act (Companies Act 71 of 2008) whenever they distribute company money and/or property. This analysis is conducted with the obligations imposed under sections 4 and 46 of the 2008 Act in mind. The purpose is not to question the inclusion of this duty in the 2008 Act. It is simply to question whether the common law interpretation of the duty still suffices in the face of section 76(3) of the 2008 Act, which seems to suggest that a different standard of judgment must be used. The argument that is made here is that the use of common law principles in interpreting proper purpose is well and good when the actions of directors are challenged based on the common law, but, where this duty has been incorporated into statutory law the interpretation of the duty in the context of the wording of the statute should be paramount. In addition, when interpreting any provision of the Act, consideration of the objects of the statute becomes inevitable. The interpretation of the duty cannot, in the face of the changes brought about by the statute, remain stagnant as a result of reliance on common law standards of judgment. The wording of the provision in question and the purpose of the statute cannot and must not be ignored; they must be given effect. A comparative approach will be adopted, using legislation and case law from Australia and Canada. The selection of these particular jurisdictions is based solely on the fact that like South Africa, their legal heritage is based on English common law, and a comparison of the three jurisdictions therefore makes sense.