Codicillus - Volume 45, Issue 1, 2004
Volume 45, Issue 1, 2004
Introducing a distance learning school for legal practice (Unisa's College of Law and the Law Society of South Africa) : announcementSource: Codicillus 45, pp 1 –5 (2004)More Less
Extracted from text ... 1 Announcement Aankondiging Introducing a distance learning school for legal practice (Unisa's College of Law and the Law Society of South Africa) Jeannie van Wyk Coordinator: Distance Learning School for Legal Practice College of Law, Unisa Nic Swart Director: Legal Education and Development, Law Society of South Africa 1 Joint venture between Unisa's College of Law and the Law Society of South Africa (LSSA) The College of Law of the University of South Africa (Unisa) and the Law Society of South Africa (LSSA) are proud to announce the establishment of a distance learning school for legal practice (the school). The school will present a practical legal training course by distance teaching for LLB graduates, in accordance with s ..
Author Jan HallebeekSource: Codicillus 45, pp 6 –16 (2004)More Less
Ngabe ubunini butholwa nini? Ngabe ukuvuma kwalabo abathintekayo kwenele yini ukwedlulisela ubunini uma bengena esivumelwaneni senkontileka yokuthengiselana, ukwenza isibonelo? Uma kunezinye izidingo njengesenzo esihamba ngasodwa sokuletha okuthile (inkambiso esiyejwayelekile ngokosiko), ngabe yiziphi ezinye izinhlobo ezahlukene zokulethwa kwezinto ngokusemthethweni (traditio)? Umbhali ubheka imfundiso yomthetho wamaRoma, imfundiso yezomthetho yesikhathi sakudaladala, amaThiyori oMthetho weMvelo kanye nomehluko okhona phakathi kokuhlelwa kwemithetho yaseYurophu ehambisana ngokuba ngevele sikhathi sinye, mayelana nokwedluliselwa kobunini.
When is ownership acquired by the transferee? Is consent of the parties sufficient to transfer ownership when they enter into, for example, a contract of sale? If there are further requirements such as a separate act of delivery (this can be referred to as <I>traditio</I> or <I>tradition</I>, and to the system as <I>traditionalism</I>), which different kinds of <I>traditio</I> are there? The author considers Roman law doctrine, medieval legal doctrine, natural law theories and the differences that exist among several contemporary European codifications in respect of the transfer of ownership.
Author Fawzia CassimSource: Codicillus 45, pp 17 –27 (2004)More Less
Umbhali ucubungula ilungelo lalowo osuke ebekwe icala lokuba abambe iqhaza ekuqhubekeni kwecala lelo amangalelwe ngalo. Ngokombono wombhali, ukubamba iqhaza kwalowo osuke ebekwe icala kungenzeka kuphela uma enekhono ngokomqondo lokuba aqondisise ubunjalo balokho amangalelwe ngakho kanye nolimi olusetshenziswa enkantolo. Ukungabinakhono lokwenza lokho kungadalwa ngamaphuzu amaningi njengokusangana, ukuba yisithulu noma ukuba yisimungulu. Umbhali ubeka ukuthi inkantolo kumele yenze uphenyo mayelana nekhono lokwenza lalowo obekwe icala ngaso sonke isikhathi lapho inezizathu ezamukelekayo zokukholelwa ukuthi lowo obekwe icala untula ikhono lokuqondisisa lokho okuqhubekayo kulokho amangalelwe ngakho. Ukuqhathanisa umthetho waseNingizimuAfrika nowezinye izindawo zomthetho kukhombisa ukuthi abantu abangenakhono lokwenza okuthile ngokwengqondo imvamisa bathathwa njengabangakulungele ukumela ukuthethwa kwecala.
The author analyses the right of an accused to participate actively in criminal proceedings. In the author's view, an accused's active participation is possible only if he or she has the mental capacity to understand the nature of the proceedings and the language used in court. Incompetency may be attributed to various factors such as insanity, deafness or dumbness. The author argues that the court should conduct an inquiry into the accused's competency whenever it has reasonable grounds to believe that an accused person lacks the ability to comprehend the proceedings. A comparison with foreign legal systems reveals that mentally incompetent persons are generally regarded as unfit to stand trial.
Author Christian SchulzeSource: Codicillus 45, pp 28 –31 (2004)More Less
UMthetho weziFiki waseNingizimu Afrika wenza amalungiselelo ezinhlobo ezahlukene zokuba ngumhlali ohlala unomphela. Umbhali uqhakambisa izidingo ezahlukene ezisebenza ezinhlotsheni lezi ezahlukahlukene, ikakhulukazi izidingo eziphakeme zezezimali ezibekwe yiMibandela yoMthetho weziFiki. Lapho kusuke kunikezwe khona imvume yokuhlala ngokwesigaba 27 esuke yesekelwe `kwezinye izizathu', uMthetho uvumela uMnyango wezaseKhaya ukuba usebenzise ukubona kwawo uma kukhulunywa ngokusetshenziswa kwesigatshana sesidingo sezimali (isigaba 27(c)(i). Lokhu kuveza umbuzo omayelana nokuthi ngabe lesi sigatshana siyisimo sokuthatha isinqumo esilusizo yini uma sesisetshenziswa.
The South African Immigration Act makes provision for different types of permanent residence. The author highlights the different requirements that apply to the various types, and more particularly the high financial requirements set by the Immigration Act Regulations. In the case of a permanent residence permit granted in terms of s 27 on the basis of 'other grounds', the Act permits the Department of Home Affairs to exercise its discretion when it comes to applying the financial requirement clause (s 27(c)(i)). This raises the question as to whether this clause constitutes a useful criterion in practice.
Author Emmanuel Joseph UkoSource: Codicillus 45, pp 32 –46 (2004)More Less
Umbhali udingida ilungelo labantu abaphila ne-HIV / AIDS noma abasengcupheni ye-HIV / AIDS lokuba bathole ukulingana emehlweni omthetho kanye nelungelo lokungabandlululwa. Umbhali ubheka izikhali ezahlukahlukene zamazwe ngamazwe nezesifunda kumalungelo esintu, umthetho osetshenziswa ekhaya, amalungiselelo omthethosisekelo nawomthetho aqinisekisa ukwethanyelwa kwamalungelo esintu ngabantu, okubalwa kubo nalabo abaphila ne-HIV / AIDS. Ugxila ikakhulukazi kumalungiselelo afanele omthethosisekelo waseNingizimu Afrika kanye nowaseNigeria kanye nomthetho wamalungelo esintu, aphethe ngokuthi abantu abaphila ne-HIV / AIDS banelungelo elikwazi ukuphoqwa njengodaba lomthetho, kanye nokuthi ukubandlululwa ngenxa ye-HIV / AIDS kuyenqatshelwa ngokubanzi.
The author discusses the right of people living with or vulnerable to HIV/ AIDS to enjoy equality before the law as well as the right not to be discriminated against. The author considers various international and regional human rights instruments, domestic law, and constitutional and statutory provisions which guarantee the enjoyment of human rights by individuals, including those living with HIV / AIDS. He looks specifically at the relevant provisions of the South African and Nigerian Constitutions and human rights law. He concludes that people living with HIV / AIDS have enforceable legal rights as a matter of law, and that discrimination on the basis of HIV / AIDS is generally proscribed.
Integrating Africa into the World Trade Organisation : constraints and challenges facing the African Union and the New Parternership for Africa's Development (NEPAD)Author Omphemetse SibandaSource: Codicillus 45, pp 47 –61 (2004)More Less
Umbhali ubhekisisa iqhaza le-African Union (AU) kanye neleNew Partenrship for Africa's Development (NEPAD) njengezindlela ezintsha nezinekhono lokuba ngezinamandla ekukhuleni nasekuthuthukeni kwezwekazi lase-Afrika. Kunokungabazeka okuncane kakhulu mayelana nokuthi i-AU-NEPAD ibhekene nezinselelo eziningi kanye nokuthi ukusizakala kwendlela yokuphatha ehlanganisa abaningi kwezohwebo kuzotholakala kalula, kuphela uma amaphuzu aphikisana nokufinyelelwa kokuhlangana kwe-Afrika nokwezimakethe engaqedwa nya noma aphathwe ngendlela enekhono elithile. Umbhali ubeka ukuthi kusemqoka ukwakha ikhono lokukwazi ukwenza e-Afrika ukuze kufezwe iqhaza lokuba nesabelo ekukhuleni kwezohwebo kumazwe ngamazwe.
The author considers the role of the African Union and the New Partnership for Africa's Development as new and potentially powerful vehicles for the growth and development of the African continent. There is little doubt that the African Union-New Partnership for Africa's Development faces many challenges and that the benefits of the multilateral trade regime will become freely available only if factors that work against the realisation of African integration and market access could be skilfully managed or eliminated.
Author Johanna Moeder LesoSource: Codicillus 45, pp 62 –66 (2004)More Less
The Convergence Bill purports to regulate the ability to carry voice and data on a single network using Internet Protocol. It also proposes the amendment of several outdated laws that govern computing and communications, technologies and services. The Bill has given rise to confusion and public disagreement. The author discusses and evaluates some of these objections.
Author Marena GeldenhuysSource: Codicillus 45, pp 67 –69 (2004)More Less
Extracted from text ... 67 VARIA Unisa's Tutorial Support Programme Marena Geldenhuys, Academic Department Tutor Coordinator, Department of Mercantile Law, UNISA Although it is a platitude, it is nevertheless true that South Africa's future success depends on the education of its people. In South Africa, secondary school education is compulsory until the last school day of the year in which the learner reaches the age of 15 or the ninth grade, whichever is the first (s 31(1) of the South African Schools Act 84 of 1996). Tertiary education is voluntary (except as an entry requirement to certain professions), but many young South Africans recognise it as the key to success. UNISA is indispensable in the ..
Source: Codicillus 45, pp 70 –72 (2004)More Less
Extracted from text ... 70 Certificate Programme in Law In 1997 the Unit for Basic Legal Education introduced a one-year Certificate Programme in Law to provide people without a legal background with a basic working knowledge of the law. Students who complete the Certificate Programme successfully are awarded a certificate at a formal certificate ceremony. This Certificate Programme is accredited as an access module. Students in possession of a matric certificate without exemption may enroll for an LLB degree at the university after they have passed certain prescribed access modules. Students who have completed the Certificate Programme successfully have passed one such access module. In addition, these students are exempted from both modules of ..
Author Alastair SmithSource: Codicillus 45, pp 73 –74 (2004)More Less
Extracted from text ... 73 Unisa Graduation Ceremony in the ZK Matthews Great Hall on 28 May 2003 Professor Alastair Smith, Department of Mercantile Law, UNISA Good evening, ladies and gentlemen, goeienaand, sawubona Well done! Congratulations to our graduates and diploma candidates. And congratulations to all their supporters who've travelled with them from their first, perhaps apprehensive, registration onwards to this evening's triumph. My words are mainly for our new law graduates, but some of what I say about effort, justice and integrity may also touch our new theologians, scientists, and teachers. You chose to study for a law degree at UNISA because you like solving problems fairly and you want to help people. Now you're ..
Author Loma SteynbergSource: Codicillus 45 (2004)More Less
Extracted from text ... 75 AN ODE TO MARIE? I once knew a lady called Marie? with hair so gold and teeth so white never before did I know one to be so bright not just in mind but also in life her heart was warm and her smile wide she touched my life, but what did she do to you? And when the dark clouds came too soon in her life not did she complain nor cried but rather started to live, so that in our hearts she would never die She shone in presence but what about her absence? Let her life and memory not be wasted, Let us rather treasure her friendliness, openness, warm-heartedness close to ..
Author Christa RoodtSource: Codicillus 45 (2004)More Less
Extracted from text ... 76 THERE ONCE WAS ... . . . a lawyer named Kirk the day on which he took silk he prepared a short plea re pet owners' liability but his own dog chewed up his quilt . . . a lawyer called Tess stinking rich one would have to confess evidence went astray the accused said hooray her bank balance showed no duress . . . a judge called De Soup who made counsel jump through his hoop suspects willingly testified complainants sat mesmerised he remained one apart from the troop . . . a judge under stress all his courts were an absolute mess prosecutors went home all his cases postponed but this is quite normal, I guess Christa Roodt Varia ..
Author Heinrich SchulzeSource: Codicillus 45, pp 77 –79 (2004)More Less
Extracted from text ... 77 About books Oor boeke Bloody Hand! Wills and Crime Ellison Kahn, Siber Ink, 2003, pp 182, price R189.00, soft cover, illustrated Professor Ellison Kahn is well known among South African lawyers. He taught hundreds, if not thousands, of us during his marathon innings of 41 years between 1948 and 1989, first as a lecturer and later as a professor of law at the University of the Witwatersrand. Others of us studied from, or consulted, one or more of the many textbooks that flowed from his pen. In addition to many articles in books and legal periodicals here and abroad, he is the author, co-author or editor of 14 books on ..
Author David TaylorSource: Codicillus 45, pp 79 –82 (2004)More Less
Extracted from text ... 79 Witchcraft Violence and the Law in South Africa John Hund (ed), Protea Book House, 2003 pp 175, price R120.00, soft cover This book was largely drawn from material that was published in 2001 by the University of the North in a special issue of the African legal studies monograph series. The impetus for the collection of articles seems to have come from the 1996 Commission into Witchcraft Violence and Ritual Murders in the Northern Province, known as the Ralushai Commission. Many of the articles in the book discuss and comment on the Ralushai Commission and provide a sound introduction to the topic of witchcraft violence. It is a ..
Author Isabel MoodleySource: Codicillus 45, pp 83 –85 (2004)More Less
Extracted from text ... 83 From the law reports Uit die vonnisverslae Indigenous Law | Inheemse reg Constitutionality of the rule of primogeniture in the customary law of succession ? females' parents were not married or were married in accordance with the tenets of African customary law ? Nonkululeko Letta Bhe and Others v The Magistrate, Khayelitsha and OthersCase No 9489/ 02 (2003) (unreported judgment of the Cape High Court) Nontupheko Marena Bhe (the mother of the applicants) and the deceased resided together as husband and wife for 12 years up to the time of the death of the deceased. Nontupheko and the deceased had two minor children, Nonkululeko (a nine-year-old female and the first ..
Author Sibusiso MasheleSource: Codicillus 45, pp 85 –89 (2004)More Less
Extracted from text ... 85 Mercantile Law | Handelsreg Equal owners of the first respondent, Ritzshelf 1004 CC, carrying on a restaurant trading under the name Passage to India ? breakdown of working relationship ? application for an order of liquidation of the second respondent (s 68(d) of the Close Corporation Act 69 of 1984) ? counterapplication by second respondent (ss 36 and 49 of the Close Corporation Act 69 of 1984) ? Winding up and deadlock ? Kanakia v Ritzshelf 1004 CC t/a Passage to India and Another 2003 (2) SA 39 The applicant (an experienced restaurateur) and the second respondent (a dentist) formed the first respondent in 2000. The restaurant commenced ..
Source: Codicillus 45, pp 89 –93 (2004)More Less
Extracted from text ... 89 Muslim law | Moslemreg Constitutionality ? certain sections of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 ? position of the Muslim widow ? Daniels v Robin Grieve Campbell NO? Unreported CPD case no 1646/01 of 24 June 2003 Ms Daniels's husband died intestate in 1994. They had been married by Muslim rites and had no children. However, Mr Daniels had four children from a previous marriage. Mrs Daniels's application to the High Court in 1998 to issue a declaration that she was the rightful owner of the house she and her husband had been living in, was turned ..
Author Douglas MailulaSource: Codicillus 45, pp 93 –96 (2004)More Less
Extracted from text ... 93 Law of Persons | Personereg The legal duty of the paternal grandparents of an extramarital child to support the child ? Peterson v Maintenance Officer 2004 (2) BCLR 205 (C) Under South African common law it is the legal duty of both parents (or their estates) to support their extramarital child, provided that they are in a financial position to do so and the child is financially unable to support himself/herself. An extramarital child is also legally obliged to support his/her mother and her relations, subject to the same requirements that they should be unable to support themselves financially and that the child should be financially able to ..
Author Anneliese RoosSource: Codicillus 45, pp 97 –101 (2004)More Less
Extracted from text ... 97 Law of Succession | Erfreg Validity of a will ? application in terms of s 2(3) of theWills Act 7 of 1953 to declare an unsigned document to be a valid will ? Bekker v Naude2003 (5) SA 173 (SCA) The validity of a will purported to be that of the plaintiff and her deceased husband was at the centre of this dispute. The deceased had previously been married to the first defendant, and they had drafted a will in terms of which the surviving spouse would inherit the entire estate of the spouse who died first. After his divorce from the first defendant, and his marriage ..
Author Tsakani NomvelaSource: Codicillus 45, pp 101 –102 (2004)More Less
Extracted from text ... 101 Family Law | Familiereg Joint custody of minor children ? Krugel v Krugel 2003 (6) SA 220 (T) The applicant and the respondent had two minor children and were divorced. Both were made custodians of their minor children, but the applicant (the father) was granted physical custody. The applicant moved to Cape Town and subsequently applied for sole custody of the children. He argued that the order for joint custody could not work because of the animosity between him and the respondent. The application was opposed by the respondent on the basis that there were no grounds upon which the court should deprive her of joint custody. ..