Discussions about the legal status of prostitution often focus on theoretical, philosophical and feminist arguments for and against criminalisation (with an appropriate dose of moral outrage on both sides) and ignore the fundamental question: what is it about prostitution that we find offensive? This article endeavours to unpack the challenges facing policy-making in this area by investigating what it is that we are trying to achieve through the regulation or deregulation of prostitution in the South African context. Three distinct approaches will be compared: the 'moralistic argument', at least partially endorsed by South Africa; the 'public nuisance' approach adopted by England, where, although prostitution itself is not illegal, almost all related activities (kerb-crawling, soliciting, etc) are prohibited; and the 'human rights based approach' taken by New Zealand. Ultimately, this article will conclude that the South African Constitution requires that the human rights based approach be favoured in the South Africa context.
The advent of digital technologies, the Internet in particular, presents traditional legal doctrine and principles with new and unique challenges. This article investigates a number of selected issues within one of the most controversial areas of Internet law, that of domain name law, mainly from an intellectual property law perspective. It deals particularly with the problematic question of to what extent domain names should be classified as proprietary interests from a trade mark law perspective. In doing so, the domain name as an object of property is also discussed within the context of a theoretically new class of property, that of 'virtual property', as well as within more traditional 'property' law paradigms.
The OHADA, Organisation pour l'Harmonisation du Droit des Affaires en Afrique (in English, Organization for the Harmonization of Business Laws in Africa) is widely seen as one of the more successful legal harmonisation experiments in Africa. Through the harmonisation of laws, the OHADA aims to attract foreign investment and thus improve the economies of its member states. This paper examines the prospect of continental harmonisation through the prism of OHADA. In spite of its positive strides, this paper argues that OHADA - as it is presently configured - is not the appropriate model for an eventual continental harmonisation project. The paper closes with suggestions on how to proceed with continental harmonisation.
Institutional design is increasingly considered an important part of states' response to the challenges of ethnic diversity. This contribution focuses on a particular aspect of the design of democratic institution, namely the electoral system. Drawing on the experience of two multi-ethnic states, the article examines the impact of electoral system in establishing a representative lower house of parliament in multi-ethnic states. The discussion suggests that supplementing institutional arrangements that seek to respond to the multi-ethnic challenge with a proportional electoral system enhances the representativeness of the lower house and fosters inclusivity. The effect of an electoral system on the representation of ethnic groups should, however, not be evaluated in abstract. The choice of the proportional electoral system is not motivated by the capacity of the latter to ensure a broader representation of the different ethnic groups. This can be achieved by the plurality system as well provided that the different ethnic groups are generally territorially concentrated. The reason for the choice of the proportional electoral system lies in its other role, namely its capacity to contribute to inter-ethnic solidarity and social cohesion by encouraging parties to develop a state-wide objective.
Demand guarantees, standby letters of credit, and commercial letters of credit are all treated as autonomous contracts whose operation will not be interfered with by courts on grounds irrelevant to the guarantee or credit itself. The idea in the documentary credit or demand guarantee transaction is that if the documents (where applicable) presented are in line with the terms of the credit or guarantee the bank has to pay, and if the documents do not correspond to the requirements, the bank must not pay. However, over the years a limited number of exceptions to the autonomy principle of demand guarantees and letters of credit have come to be acknowledged and accepted in practice. In certain circumstances, the autonomy of demand guarantees and letters of credit may be ignored by the bank and regard may be had to the terms and conditions of the underlying contract. Established fraud is the main accepted international exception to the autonomy principle. For some time it has been uncertain whether illegality in the underlying contract is also an exception. In this article attention will be given to whether England, the United States of America and South Africa consider illegality in the underlying contract to be a valid exception to the autonomy principle of demand guarantees. From the discussion that follows it will be seen that illegality as an exception is very controversial and its scope remains uncertain.
Globalisation is pushing higher education towards greater international involvement, a process often referred to as the 'internationalisation of higher education': integrating an international dimension into the teaching, research and service functions of higher education institutions. Many apprehensions surround the liberalisation of higher education in India. The obligations of members of the WTO towards the GATS regime and the present scenario of higher education and the rest of the world are analysed. Certain policy measures are formulated and offered for consideration before liberalising higher education services in India.