The People's Republic of China was one of the world's fastest growing economies during the 1990s. Under the general policy of economic reform and opening to the outside world, China has experienced vigorous economic development and has shifted from a closed or semi-closed economy to an open, market-oriented economy termed a 'socialist market economy'. More and more entrepreneurs from all over the world are looking to China as one of the most important regions for investment and trade cooperation, making the country the most exciting direct foreign investment (DFI) destination and a market which no serious player in the world economy can ignore. As has been stated at many international conferences, China is an indispensable part of the global economy and the commitment of the Chinese government to economic reform is unquestionable.
In this article comment is made on aspects of contractual liability arising between producers and users of software, comparing the position in Anglo-American and South African law. The relevance of Anglo-American law stems from the fact that many software programmes currently in use in South Africa have been developed in the USA and the UK, and are consequently distributed in terms of agreements (mostly standard form contracts) containing terms relating to foreign legal systems and also stipulating such legal systems as the applicable law in case of litigation. Since almost all of these contracts contain exemption-from-liability clauses, it is to the advantage of contractants to be aware of some of the legal implications.
One of the primary reasons for the introduction of class actions is to improve access to justice. However, the existence of substantive barriers to the court system and its operation will bar litigants from pursuing meritorious claims, and this creates a wrong climate for class actions. It is therefore important that the legal infrastructure of class proceedings be designed in a way that counteracts such barriers and ensures efficient litigation.
Class proceedings are necessary to deal with the burden which is placed on the normal litigation process by the complex demands of a large number of litigants, and is of necessity a procedural mechanism. Certification is a vital part of such a mechanism and its role is to ensure that class proceedings are appropriate. Therefore, until a potential action is certified, it is not a class action.
In South Africa constitutional provision has been made for class actions and public interest actions. The South African Law Commission recommended legislation to provide for these actions in general practice, and included draft legislation in its recommendations. Since no legislation has been forthcoming, the proposed legislation pertaining to certification will be evaluated against the Ontario legislation to test its potential effectiveness.
Religious human rights occupy a central position in human rights jurisprudence. They are the chronological and conceptual kernel from which much of what we today know as the idea of human rights has developed.
In terms of the 'struggle theory of human rights', human rights and legitimate resistance are two sides of the same coin. To claim the protection of a particular interest as a human right, is simply another way of saying that if that interest is threatened, and there is no other reasonable alternative, one can take the law into one's own hands to protect that interest. Or conversely : to claim a right of resistance to protect a particular interest, is tantamount to claiming that the protection of that interest is a basic human right.
When we say human rights are 'inviolable', we do not suggest that they may never be breached but rather that they should not be violated, and that their violation need not (and perhaps even should not) be tolerated. To determine the contents of the concept of human rights, we consequently need to examine human history and establish which interests have over time emerged as those that we agree could not legitimately be threatened, even by the law.
There can be little doubt that freedom of religion has acquired this status over the years. In many ways, the development of the idea of religious autonomy paved the way for the acceptance of other fundamental rights.
Largely on account of South Africa's historical circumstances, the Employment Equity Act is destined to become an important instrument for effecting equity and redress in the workplace. The Act is engendering controversy for introducing, for the first time, a statutory framework for affirmative action in the workplace so as to effect redress for blacks and women. However, the novel parameters of the Act are not confined to affirmative action based on race or gender. The Act also extends the quest for a just and equitable society to the elimination of HIV-related discrimination and securing equity and redress for people with disabilities.
Against the backdrop of HIV / AIDS-related discrimination in the workplace, this article discusses the likely impact of the Act on securing equality for people living with HIV / AIDS (PWAs). The focus is on elimination of unfair discrimination so as to create equal opportunities for PWAs. The article also attempts to assess the likely impact of the Act on the treatment of people with disabilities, but only to the extent that HIV and AIDS can be said to fall within the ambit of disabilities under the Act. Where pertinent, the article draws from jurisdictions such the United States, Canada, Australia and the United Kingdom where directly or indirectly, HIV-related discrimination is subject to legislation.
Leaving aside the general injunction on employers to eliminate unfair discrimination in the workplace, the discussion will be constructed around four main areas in which the Act impacts on ensuring or creating equal opportunities for PWAs. Firstly, it outlaws unfair discrimination against an employee on one or more grounds, including HIV status.
Secondly, it prohibits medical testing of an employee, including, of necessity, an HIV test. Thirdly, it specifically prohibits determining an employee's HIV status unless such testing has been determined to be justifiable by the Labour Court in terms of the Act. Finally, the Act provides for affirmative action for, inter alia, people with disabilities. It will be submitted that PWAs fall within the ambit of people with disabilities, especially after the onset of AIDS.