Comparative and International Law Journal of Southern Africa - Volume 40, Issue 2, July 2007

Deep sea trawling is among the big challenges that the world must deal with urgently. It is destructive of marine bidoversity, yet it is largely unregulated and therefore legal in many areas. Only a few regional bodies have banned the activity. A solution to this problem must however take into account that this problem affects fish resources which are an intregral part of marine biodiversity, hence the need to adopt an intergrated regulatory approach. The United Nations Convention on the Law of the Sea has clearly failed to deal with these types of problems as it was never meant to govern them. It is suggested that through international environmental diplomacy, given the urgency of the matter, a temporary ban on bottom trawling would be necessary while a long lasting regulatory framework is being developed by the United Nations through the Ad Hoc Informal Open ended Working Group appointed in 2006. However development of a regulatory framework is one thing, making sure that it is effectively implemented is another. Augumenting coastal state jurisdiction may provide the only reasonable solution but its efficacy is subject to a number of other variables, that affect international environmental treaty-making, enforcement and implementation.

The internet is a unique medium where communicators can choose how much information about themselves they want to reveal - in other words they may choose whether to remain anonymous or whether to shelter behind a pseudonym. Where the communications are defamatory, plaintiffs have to consider how to go about identifying defendants known only by a pseudonym or computer address. A balancing of interests is required : the right of freedom of expression and privacy on the one hand, and the protection of the reputation of a person or a company, on the other. This article discusses comparatively by referring to the position in the US and UK, the legal issues surrounding attempts by plaintiffs to identify such anonymous posters of defamatory messages. It will also focus on the extent to which internet service providers can be compelled to disclose the identities of their users.

Indigenous South African legal disputes are resolved in a fundamentally different way from typical Western legal disputes. In indigenous matters attempts to arrive at the 'truth' during legal proceedings occur in a communal context. The communal context encourages a holistic narrative style of participants in the proceedings, as apposed to the interrogative and interruptive style of Western proceedings. The differences in style can be attributed, in part, to different notions of 'truth' and different understandings of what the ultimate objectives of legal proceedings are. Typically Western legal procedure attempts to arrive at 'truth' in fact and 'truth' in law - so called factual or forensic truth. Indigenous legal procedure takes a broader understanding of truth. Indigenous legal procedure situates 'truth' in fact and 'truth' in law in the broader context of other truths, including 'personal' and 'narrative' truth; social or 'dialogue' truth and healing or restorative truth.

Countries often enter into double taxation treaties in order to alleviate double taxation. However, a country's treaty network can be exploited by residents of a non-treaty country in order to obtain treaty benefits that are not supposed to be available to them. This is often referred to as 'treaty shopping', which entails the interposing of a conduit company in one of the contracting states so as to shift profit out of those states. This results in tremendous loss of tax revenue for the countries party to the treaty.

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Despite the fiscal disadvantages of treaty shopping, not much attention has been given to this problem in South Africa. The Organisation for Economic Cooperation and Development suggests that one of the means that contracting parties can use to curb treaty shopping is by inserting a 'beneficial ownership' provision in their tax treaties. In this article, treaty shopping and its fiscal disadvantage are discussed. The limitations of the 'beneficial ownership' provision are analysed and recommendations are provided to ensure the effectiveness of this provision in curbing treaty shopping from a South African perspective. The article also addresses the validity of contentions that certain aspects of South Africa's legislation create loopholes that may render this provision ineffective in curbing treaty shopping.

Gene manipulation has generated enormous discussion among various segments of the community. There is no certainty regarding the advantages and disadvantages of genetically modified organisms. This article gives an overview of the international stance regarding such organisms and deals specifically with aspects such as genetic engineering, an historical background of genetically modified organisms, the international application of these organisms, the international regulations regarding genetically modified organisms, a comparative study of the legislation dealing with them in various jurisdictions, including South Africa, and the labelling and public opinion in respect thereof.

It was officially recommended that the proposed South African Family Court be modelled fairly closely on, inter alia, the Australian Family Court. Since its inception, this court has had a social component which emphasised the importance of counselling and conciliation in divorce matters and responded to the demand for divorce and family mediation. In addition, family law legislation of the past thirty years provides strong evidence of the Australian government's commitment both to the provision of alternatives to litigation for the solution of disputes surrounding family breakdown and the strong encouragement of separating spouses to avail themselves of these alternatives before resorting to litigation. The most important of these are the Family Law Act 1975, the Family Law Reform Act 1995, the Federal Magistrates Act 1999 and the Family Law Rules 2004. The manner in which these pieces of legislation attempt to integrate alternative dispute methods, especially mediation, into the family law system is examined in this article. Further, certain problems with the present family law system in Australia relating to divorce and family mediation are set out as well as the very recent endeavours of the Australian government to address these problems.

This article addresses how the doctrine of constructive expropriation can be accommodated in the South African legal system. Case law has not yet provided clear guidelines and the possibility of expanding the parameters of expropriation by adopting the uniquely Canadian approach to the issue of constructive expropriation, is explored. Canadian jurisprudence recognises that expropriation is a matter involving both fact and law and that when the loss to the aggrieved party is accompanied by a form of appropriation by the expropriating authority, compensation becomes payable. Constructive expropriation could apply in South Africa if the range of appropriation were to be extended to regard any form of gain or benefit at the expense of the property owner's core competence in relation to the property, as an acquisition by the expropriator.