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- ItemOpen AccessA century worth celebrating(2010) Corder, HughIt is understandable that no great fuss has been made of the hundredth anniversary of the establishment of South Africa as a nation state within its current borders (through the South Africa Act 9 Edw VII, ch 9). The Act of Union, after all, while it represented a triumph for those arguing for the formal reconciliation of ‘Boer and Brit’, marked much more negatively the exclusion of the majority of the new country’s population from any effective say in the institutions of government. Not only were the proponents of federalism, which might have allowed the less conservative leadership in the Cape Colony to retain a degree of autonomy through which to pursue government based on individual worth, soundly defeated, but the elements of non-racial government preserved in the Cape franchise arrangements (and to a lesser extent, those of Natal) were seen as provisions to be protected as a dying species, rather than as bridgeheads for their expansion more widely within the Union
- ItemOpen AccessA critique of the insider trading provisions of the 2004 Securities Services Act(2006) Jooste, RichardVarious attempts have been made over the years by the legislature to combat insider trading and related activities. The Securities Services Act of 2004, which repeals the Insider Trading Act of 1998 and now regulates insider trading, has made significant changes to the law in this regard. However, this contribution argues that the law remains flawed in a number of respects and that certain innovations, such as the extension of the ambit of liability to cover body corporates, partnerships and trusts have been introduced without sufficient elaboration. The article seeks to analyse the new provisions and to highlight their failings.
- ItemRestrictedA different way of saying: On stories, text, a critical legal argument for contractual justice and the ethical element of contract in South Africa(2005) Barnard, A JThis article takes a critical approach to South African contract law. Employing the post-modern concept of narrative truth it is argued that one can extract from the South African Law Commission's texts on Unreasonable Stipulations in Contracts (at least) four stories about the South African law of contract. These stories are those of certainty, resistance, equity and the story of the text. The story of the text (i.e., a fully legislated and delineated equity jurisdiction in contract law) was the one recommended to Parliament by the Law Commission. Parliament has however indefinitely suspended the reformative narrative since the Commission's Report was tabled. The author argues that the courts have failed to take issue with the suspension of the (reformative) narrative. Contract law still tells the story of certainty and predictability In (a tentative) conclusion it is argued that, although the stories generated by the Law Commission's investigation are organised along inescapable dualities, the (political) focus in global contract law has moved to an emphasis on the ethical element of contract. The article concludes with the writer's story, which argues (with reference to the work of Drucilla Cornell and Karin van Marle) for an ethical approach to contract which supports the concepts of communicative freedom and Cornell's exposition of the relationship between Kantian freedom and dignity. The writer's story concludes that the emphasis on the ethical element of contract enjoins contracting communities to engage in deliberative (story-telling) practices which cannot await the story of the law. Finally, issue is briefly taken with the reasons why this is a critical legal argument.
- ItemOpen AccessA warning to everyone who deals with a trust(2005) Jooste, RichardThe recent case of Nieuwoudt & another NNO v Vrystaat Mielies (Edms) Bpk 2004 (3) SA 486 (SCA) has raised questions regarding the applicabilityof the doctrine of constructive notice and the so-called Turquand rule to trusts. The doctrine of constructive notice and the Turquand rule form part of the common law governing companies.
- ItemRestrictedAboriginal title, indigenous rights and the right to culture(2004) Lehmann, KarinThe doctrine of aboriginal title has been the subject of considerable academic commentary in South Africa in the past few years. The generaltenor of this commentary has been approving of the doctrine. Proponents of the doctrine are of the view that it provides a means for communities to obtain ownership of land when they are not able to do so through the Restitution of Land Rights Act 22 of 1994. This article questions whether the doctrine really is of value for South African communities. On the one hand, it is suggested that few communities, if any, would meet the doctrine’s rigorous requirements. More significantly, it is suggested that the doctrine, in its parent jurisdictions, does not operate to restore land to dispossessed communities. It recognises only that aboriginal communities currently in occupation of land have rights in and to the land. It is in this regard that the doctrine’s application in South Africa is most problematic. The terms ‘aboriginal’ and ‘indigenous’ are used interchangeably under comparative and international law. Although there is standard definition of ‘indigenous’, under the suggested definition that has been most widely accepted, it is not clear that the black African majority in South Africa would constitute ‘indigenous’ peoples, in the sense of constituting distinct rights bearers. A broad definition of ‘indigenous’ that would include black African communities is not consistent with the purpose that the recognition of indigenous rights seeks to achieve. A narrow definition of ‘indigenous’ that includes only the descendants of Khoesan peoples is likely to prove highly contentious, and may undermine the spirit of national unity and reconciliation that the Constitution seeks to achieve. An approach that avoids the need to identify communities as indigenous for the purpose of claiming rights in and to land is therefore to be preferred. It is suggested that the constitutional right to culture provides an alternative, since the link between aboriginal title and the protection of culture is clearly drawn in Canadian and Australian cases.
- ItemOpen AccessAdministrative Law in Public-Sector Employment Relationships(Juta Law, 2008) Stacey, RichardA number of contrasting and conflicting approaches have emerged in the high courts, the Supreme Court of Appeal and the Constitutional Court in regard to the question whether the actions of the state as an employer are subject to the controls of administrative law and must be consistent with the principles of administrative justice. The author argues that public-sector employment decisions can be defined as 'administrative actions' and must be considered 'public-law wrongs' whenever they are unlawful, unreasonable or procedurally unfair. There is no reason, he further argues, to deny the protection of administrative law to public-sector employees merely because they are employees. If the power exercised or the function performed is public and in terms of legislation, the remedies of administrative justice must be available to public sector employees.
- ItemOpen AccessThe African warlord revisited(Taylor & Francis, 2015-11-08) Freeman, LauraTo date, warlordism in Africa has been viewed solely negatively. This has come about, in part, because of the analytical lenses that have been used. Typically, warlordism has been examined at the state level; and behavioural traits, rather than definitionally necessary components, have been the focus. In effect, ‘warlord’ has been confused with other violent actors. I suggest here a reconceptualisation ‘from below’, which takes into account variation in types of warlordism, and which allows for both positive and negative effects of warlordism on society and the state.
- ItemOpen AccessAfrOBIS: a marine biogeographic information system for sub-Saharan Africa(Academy of Science of South Africa, 2007) Grundlingh, M L; von St Ange, U B; Bolton, J J; Bursey, M; Compagno, L; Cooper, R; Drapeau, L; Griffiths, C L; bel Hassen, M; Herbert, D G; Kirkman, S; Ohland, D; Robertson, H G; Trinder-Smith, T; van der Westhuysene, J; Verheye, H M; Coetzer, W; Wilke, CAfrOBIS is one of 11 global nodes of the Ocean Biogeographic Information System (OBIS), a freely accessible network of databases collating marine data in support of the Census of Marine Life. Versatile graphic products, provided by OBIS, can be used to display the data. To date, AfrOBIS has loaded about 3.2 million records of more than 23 000 species located mainly in the seas around southern Africa. This forms part of the 13.2 million records of more than 80 000 species currently stored in OBIS. Scouting for South African data has been successful, whereas locating records in other African countries has been much less so.
- ItemOpen AccessAfter Glenister: The case for a new dedicated agency(Academy of Science of South Africa, 2012) Reeves, ChristopherLast year, the Constitutional Court held that the state has an obligation to establish and maintain an independent anti-corruption entity and that the Directorate of Priority Crime Investigation (DPCI), which is located within the South African Police Service (SAPS), does not have an adequate degree of independence. A Bill has recently been introduced in the National Assembly to address the issues raised in the judgment. In accordance with the proposed amendments, the DPCI would remain part of the SAPS. This article argues that this is a mistake and that a wholly separate anti-corruption entity should be established. It also examines the legal and institutional framework required to establish an effective, specialised anti-corruption entity through a comparative analysis of other anti-corruption agencies.
- ItemOpen AccessAgreements to agree: can there ever be an enforceable duty to negotiate in good faith?(Juta, 2011-06-01) Hutchison, AndrewParties to an agreement may include open terms which leave certain particulars open to future negotiation. The aim of this type of provision is usually to allow for changing circumstances over time or the threshing out of more detailed terms. Conventional drafting practice is to state that these terms are to be negotiated in the future in good faith. What if a party subsequently resists all efforts to reach agreement? Is there a mechanism which will enforce this duty to negotiate? Of course the parties may have inserted their own deadlock-breaking provision – in the absence thereof a court should be able to find its own resolution. This paper will consider proposed methods of enforcement of such a duty with reference to developments in South Africa as well as other countries, particularly the USA and Australia.
- ItemRestrictedAn elaboration of the themes and contentions in Mmatshilo Motsei's book The Kanga and the Kangaroo Court, reflections on the rape trial of Jacob Zuma(2008) Greenbaum, BryantIt is important to highlight discourses from black gender activists and researchers when dissecting the issue of sexual violence in South Africa, as most victims of sexual crimes are black women and children who also struggle with subtle race, class and cultural obstacles. Unfortunately, at the present time, the voices of black women activists and researchers, including Mmatshilo Motsei, are considered superfluous in legislative debates surrounding sexual violence and therefore important race, class and cultural influences are not fully addressed when sexual offences Bills come before Parliament or when sexual violence cases are heard by magistrates and judges. Using Motsei's book as a guide, this article focuses on the cultural influences that are not being properly addressed in Parliament and in the criminal justice system and it suggests possible legislative reforms that can assist prosecutors and magistrates when they confront official customary law and living customary law in evidentiary, procedural and sentencing matters.
- ItemOpen AccessAscertainment of customary law: case note on MM v MN - case note(2016) Osman, FatimaFroneman J states in MM v MN: ‘The process of determining the content of a particular customary norm can present some challenges.’ This case gives rise to a number of issues which have been discussed in some part elsewhere,2 however this note considers the Constitutional Court’s approach in MM v MN in ascertaining customary law and the difficulties the Court experienced. The issue in MM v MN was whether a polygamous customary marriage was validly concluded in Tsonga customary law and in particular, whether the first wife’s consent was required for the subsequent customary marriage. This note scrutinises how the Constitutional Court ascertained the Tsonga customary law on the issue. Tentative conclusions include that innovation and respect for customary law may not be enough for the judgment to stand as good precedent.
- ItemOpen AccessAspects of South African law as it applies to corruption in the workplace(Juta Law, 2004) Le Roux, RochelleThe modern workplace is often the closest interface that individuals have with one of modern society's greatest malaise: corruption. Job insecurity and the right to privacy, more particularly cyber privacy, are often perceived as forces undermining the prevention of corruption in the workplace. This article explores the means at the disposal of employers and employees to address corruption in the workplace and endeavours to illustrate that there are aspects of South African law that provide a framework within which corruption can be addressed in the workplace.
- ItemOpen AccessAUTOBIOGRAPHIES OF A SPECIAL KIND: Recent writings by and on the police in South Africa(Academy of Science of South Africa, 2014) Van der Spuy, Elrenahe occupational culture of police organisations has long fascinated policing scholars. In the Anglo- American world ethnographic enquiries have contributed much to our understanding of police perceptions, beliefs and actions. This article takes a closer look at efforts to describe and analyse police culture in South Africa. Three genres of writings are considered. Structural accounts of police culture and ethnographic accounts of the police are briefly discussed before turning to a more detailed consideration of a third and emerging genre: police autobiographies. Two recent autobiographies written by former policemen are explored in some detail with the view to considering the contribution of the autobiography to our understanding of the complex occupational dynamics of police and policing in South Africa.
- ItemOpen AccessBack to basics: Reliance damages for breach of contract revisited(Juta Law, 2004) Hutchison, DaleMany years ago Professor D J Joubert suggested that there was no real distinction in principle between positive and negative interesse and that the terms should be avoided because they were likely to cause confusion ('Negatiewe interesse en kontrakbreuk' (1976) 39 THRHR 1 at 13-14). More recently ajudge has defended the distinction as a practical one (Horwitz AJ in Masters v Thain t/a Inhaca Safaris 2000 (1) SA 467 at 473nl). That case is the latest in a series grappling with the question whether or to what extent the victim of a breach of contract may elect to claim damages measured according to its negative rather than its positive interest (see Probert v Baker 1983 (3) SA 229 (D); Svorinic v Biggs 1985 (2) SA 573 (W); Hamer v Wall 1993 (1) SA 230 (T); Mainline Carriers (Pty) Ltd vJaad Investments CC 1998 (2) SA 468 (C); Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours 1998 (4) SA 802 (W); Masters v Thain (supra)). The cases reveal such a wide variety of judicial opinion on these points - particularly as regards which losses are covered by the terms positive and negative interest - that one cannot help but begin to share Professor Joubert's misgivings about the usefulness of the distinction. After the decision in Probert v Baker - the first in the series of cases just mentioned - Professor Gerhard Lubbe of Stellenbosch University wrote a very helpful article in which he attempted to clear up some of the misconceptions and confusion apparent from that decision ('The assessment of loss upon cancellation for breach of contract' (1984) 101 SALJ 616). That article has proved most influential: it has been cited in almost every subsequent case dealing with the issue, by judges on either side of the debate. It is not an easy read, however, and at times one is left with the uncomfortable feeling that its arguments have not been properly understood. In fairness, it should be said that the more recent cases reflect, to my mind at any rate, a better understanding of the issues and principles involved, and in this regard particular mention should be made of the very learnedjudgment of FarlamJ (as he then was) in the Mainline Carriers case. Nevertheless, taken as a whole, the body of case law on the topic represents a confusing and almost impenetrable mass for most students, and no doubt for many practitioners,law teachers and even judges.
- ItemOpen AccessBackwards to the cautionary rule: S v Van der Ross 2002 (2) SACR 362 (C)(Juta Law, 2003) Schwikkard, Pamela Jane
- ItemRestrictedBarriers to justice: Violations of the rights of deaf and hard-of-hearing people in the South African justice system(Juta Law, 2003) Degut, Helen; Morgan, RuthThis article discusses the violation of rights of disabled persons in the South African justice system. Its particular focus is the infringement of rights of deaf and hard-of- hearing people as a result of communication barriers in police stations and courts. While deaf and hard-of-hearing people comprise a small percentage of disabled individuals who come into contact with the justice system, the violations that occur are endemic and symptomatic of a disregard by justice officials of the rights and needs not only of deaf and hard-of-hearing persons, but of all disabled people. It is argued that a scheme comprising three components can guarantee the rights of deaf and hard-of- hearing people in South Africa's justice system. The first and most fundamental component is a recognition by justice officials that the right of the deaf and hard-of- hearing to be treated fairly in the justice system is constitutionally required. The second component requires amended and augmented legislative provisions to flesh out the content of the constitutional rights. The third component is that practical guidelines should be disseminated among justice officials to direct their day-to-day interactions with deaf and hard-of-hearing people. Such a scheme can prevent future violations of rights of the disabled and enhance the goal of equality for all South Africa's citizens.
- ItemOpen AccessBekker v Naude: The Supreme Court of Appeal settles the meaning of 'Drafted' in Section 2(3) of the Wills Act, but creates a potential constitutional problem(Juta Law, 2004) Paleker, MohamedIn Bekker v Naude en andere 2003 (5) SA 173 (SCA) the Supreme Court of Appeal ended the long-raging debate in our courts regarding the meaning of the word 'drafted' in s 2(3) of the Wills Act 7 of 1953. In this note I shall trace the events leading up to the court's decision and discuss certain constitutional issues raised by the judgment.
- ItemOpen AccessBeyond the Traditional Courts Bill: regulating customary courts in line with living customary law and the Constitution(Academy of Science of South Africa, 2011) Weeks, Sindiso MnisiThis article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. Customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. The article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. The framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the Constitution.
- ItemOpen AccessBlind faith: a response to Professors Neethling and Potgieter(2007) Fagan, AntonIn a recent note, ‘Wrongfulness and negligence in the law of delict: A Babylonian confusion?’ (2007) 70 THRHR 120, Professors J Neethling and J M Potgieter raise several objections to the analysis of wrongfulness and negligence that Brand JA presented in his inaugural lecture at the University of the Free State and which he adopted in his judgment in the case of Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA).