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- Volume 39, Issue 2, 2006
Comparative and International Law Journal of Southern Africa - Volume 39, Issue 2, 2006
Volumes & issues
Volume 39, Issue 2, 2006
From snail mail to e-mail - a South African perspective on the web of conflicting rules on the time of e-contractingAuthor Tana PistoriusSource: Comparative and International Law Journal of Southern Africa 39, pp 178 –213 (2006)More Less
Most countries that adopted e-commerce laws maintained the status quo on the time of e-contracting and this issue has remained unsettled. The difficulty courts face in applying common-law principles to determine the time of electronic contracting is discussed. The common-law rules devised for determining the time paper-based contracts are formed cannot be applied to determine the time of electronic contract formation with ease. It is submitted that the categorisation of forms of communication as either 'instantaneousness' or 'non-instantaneousness' to determine the time of electronic contract formation is outdated. The use of these obsolete methods to determine the moment a contract becomes effective defeats the whole purpose of e-commerce legislation: to create rules for e-contracting that are both functionally equivalent and media neutral in their operation. It is submitted that a new, uniform solution, which is neutral to the mode of communication, should be adopted. In South Africa the ECT Act adopted the reception theory for electronic contract formation. The ECT Act's provision on the time of e-contract formation is not flawless but it is submitted that it was a brave step in the right direction.
Source: Comparative and International Law Journal of Southern Africa 39, pp 214 –240 (2006)More Less
The battle of forms is a contract law problem caused by the use of conflicting standard terms and conditions by parties during the negotiations phase of a transaction. According to the traditional mirror image approach to offer and acceptance every time a party seeks to introduce its own standard terms, it amounts to a counter-offer with the result that the party who gets the last shot in, will win this battle of forms. Most legal systems have recognised that this is an unsatisfactory solution to the problem and a number of different solutions have been developed to resolve the issue. In this article the various approaches adopted in the American Uniform Commercial Code, the German Bürgerliches Gesetzbuch, the Unidroit Principles International Sale of Goods, 1980 are discussed in comparative perspective in order to arrive at a reasoned proposal for the solution that should ideally be adopted. It is proposed that the last shot rule should be rejected and the knock-out approach should be favoured.
Author Christa RautenbachSource: Comparative and International Law Journal of Southern Africa 39, pp 241 –264 (2006)More Less
India's history, its people and the phenomenon of various personal laws make it an ideal legal system for comparison with South Africa. There is a generally applicable Indian law that applies to all Indians irrespective of their religion. In the personal law sphere, we find a system of concurrent personal laws that applies to members of the various communities in India. As part of this personal law system, is an optional secular system of personal law.
On the other hand, the religious communities of South Africa are served by a national law (state law), which purports to be secular, and by the customs and usages of religious communities (non-state law). As South Africa is in the process of recognising Islamic marriages, a comparison between the South African situation and other jurisdictions grappling with similar issues, is apposite.
In this contribution the following is investigated: the meaning of 'personal law' in India, the variety of personal law systems applicable in India and the circumstances surrounding the so-called Uniform Civil Code debate. Finally, a conclusion as to the suitability of the Indian model for South Africa is assessed.
Delictual liability arising from the use of defective software : comparative notes on the positions of parties in English law and South African lawAuthor K. AlheitSource: Comparative and International Law Journal of Southern Africa 39, pp 265 –308 (2006)More Less
Software-controlled processes have become indispensable in all walks of life. Everyday objects such as washing machines, microwave ovens, and traffic lights are microprocessor-controlled, most office workers now use computers as part of their daily activities, and software is used to manage many safety-critical applications such as life-sustaining units in hospitals. In the event of a malfunction, losses may occur and potential liability arises. Defective software can cause serious damage resulting in personal and patrimonial injury. In contrast to the casuistic approach of English tort law, the South African law of delict is based on general principles whereby any damage caused wrongfully and culpably, is actionable. These principles apply to any infringement of individual interests, including, it is submitted, injury caused by the unjustifiable use of defective software. This article comments on some aspects of the delictual or tortious liability of the producers of software for damage caused by the use of defective software, and highlights the different approaches that will be followed by these two legal systems with regard to resultant actions. It is pointed out that in both jurisdictions, most software liability actions will be based on negligence or products liability. In the case of software with an intellectual output consisting of information, errors may constitute a negligent misrepresentation on the part of the producer. Defective software may attract products liability based on a defective product. In conclusion it will be pointed out that claimants under English law may be in a better position than their South African counterparts due to the possibility of advancing a strict products liability claim, thereby relieving the plaintiff of the onerous duty to prove fault in the sophisticated high-technology world of the software industry.
Negotiating a standard material transfer agreement under the International Treaty on Plant Genetic Resources for Food and Agriculture : issues and concerns for AfricaAuthor Edgar TabaroSource: Comparative and International Law Journal of Southern Africa 39, pp 309 –332 (2006)More Less
This contribution entails an analysis of the development of a standard material transfer agreement presently being negotiated under the International Treaty for Plant Genetic Resources for Food and Agriculture. In particular, the article explores the key concerns for the African negotiating group, and what ought to be looked out for in the design of a standard agreement. Case studies of agreements designed between bio-prospectors and indigenous communities are selected from Asia, the Pacific region, Latin America, and Africa for comparative purposes whereupon conclusions as to whether Africa will benefit are drawn. The recommendations are drawn from tested legal principles in the general realm of international law taking into consideration the African peculiarities that ought to inform the African negotiating group.
Author Nazeem M.I. GoolamSource: Comparative and International Law Journal of Southern Africa 39, pp 333 –350 (2006)More Less
In the light of the recent publication of cartoons aimed at mocking the Prophet Muhammad (peace be upon him) this article analyses the approach to the idea of freedom of expression in Western / European jurisdictions - in particular the USA, Canada, Australia and Belgium / Netherlands - and in Islam. In terms of Islamic law, the public utterance of hurtful speech and blasphemy constitute violations of the right to freedom of expression. It is submitted that the limits of the freedom were overstepped by the publication of the cartoons and that such freedom must be limited when it reaches the bounds of hate speech and blasphemy. It is further submitted that the publication infringed the human dignity of Muslims worldwide. The article makes apparent the double standards in respect of blasphemy inherent in Western / European jurisdictions, with particular reference to its treatment of Holocaust denial. The section on the status of the Prophet Muhammad (pbuh) has been included so as to enable the non-Muslim reader in particular to understand the worldwide Muslim reaction. Finally, the article calls for an urgent need for a European / Western commitment to the mutual respect of all religions and to a sincere commitment to multiculturalism.
Political participation of women in Lesotho : the case of Molefi Ts'epe v The Independent Electoral Commission and Others, judgment of 30 June 2005Source: Comparative and International Law Journal of Southern Africa 39, pp 351 –360 (2006)More Less
In contrast with the political marginalisation of women at the national level, the Lesotho legislature in 2004 instituted a gender-based quota system at the local level. In terms of this system, a third of the seats in electoral councils in local elections are reserved for female candidates. Responding to a constitutional challenge against this innovation, the Lesotho Court of Appeal in Molefi Ts'epe v The Independent Electoral Commission and others held that 'positive measures', such as the electoral quota system, conformed with Lesotho's international obligations and constituted a justifiable limitation to the rights under the Constitution. Against the background of pervasive discrimination against women in Lesotho, this decision is a small but significant step in a process that should accelerate after the ratification by Lesotho and the entry into force of the Protocol to the African Charter on the Rights of Women in Africa subsequent to the decision in this case.