Codicillus - Volume 46, Issue 1, 2005
Volume 46, Issue 1, 2005
Author Hanneretha KrugerSource: Codicillus 46, pp 1 –14 (2005)More Less
Njengamanje akunalwazi olulandelekayo ngamalungelo ezingane. Ko- dwa-ke indikimba evela ngokuphindaphindeka kwezolwazi oluphathelene namalungelo ezingane yilokho okwaziwa ngokuthi yi <I>`maturation factor'</I> (iphuzu eliphathelene nokukhula) okwemukelwa ecaleni lika <I>Gillick</I>. Ngokwaleli phuzu, kuyemukeleka ukuthi izingane ezingaphansi kweminyaka eyi-16 zithola ikhono lokuzithathela izinqumo lapho sezifinyelele ezingeni elenele lokuqondisisa nelokuhlakanipha ukuze zikwazi ukuzenzela ezikucabangayo. Igunya labazali enganeni liyaphela lapho ingane isithola leli khono. Ucwaningo lukhombisa ukuthi kukho kokubili ukuthuthuka kwengqondo nokwesimilo, izingane eziningi zifika emazingeni abantu abadala lapho sezimaphakathi kwamabanga okuthomba nawobudala. Umbhali unombono wokuthi i'<I>Gillick competency test'</I> okuyisivivinyo sokuthola ikhono lokwenza okuthile, kuyisifanekiso esemukelekayo sokuvikela amalungelo ezingane, kodwa kubuye kuxhunywe nesibonelelo esithi izingane azinakuvunyelwa ukuthatha izinqumo eziqophisana nalokho okuhle okuzifanele. Ukusebenza kwale ndlela yokubona izinto kuyakhonjiswa lapho kwenzeka khona ngokuthi kubhekiswe kuzinqumo ezimbili ezisanda kuthathwa zaseNingizimu Afrika. End
There is no coherent theory of children's rights at present. However, a recurrent theme in children's rights theory is the so-called maturation factor, which was recognised in the case of <I>Gillick versus West Norfolk and Wisbech Area Health Authority and the DHSS.</I> The maturation factor involves recognising that children under the age of 16 acquire the capacity to make their own decisions once they attain sufficient levels of understanding and intelligence to be capable of making up their own minds. Parental authority over the child terminates when the child acquires this capacity. Research indicates that, both in cognitive and moral development, many children reach adult levels in mid-adolescence. The author is of the view that the <I>`Gillick</I> competency test' is an acceptable model for the protection of children's rights, with the important rider that children should not be allowed to make decisions that are contrary to their own best interests. The dynamics of this approach is illustrated by two recent South African decisions. End
Taking children's rights seriously : access to, and custody and guardianship of, a child born out of wedlockAuthor Douglas MailulaSource: Codicillus 46, pp 15 –29 (2005)More Less
South African private law relating to custody and guardianship of, and access to, children born out of wedlock has always been determined from the perspective of the father. This has been the case despite worldwide propagation of children's rights since the 1960s. The author is of the view that this paternalistic approach is contrary to the child-centred approach espoused in the Constitution of the Republic of South Africa, 1996, which entrenches children's rights in South African law. Moreover, this approach falls short of relevant international law. End
Umthetho wangasese <I>(private law)</I> waseNingizimu Afrika ophathelene nokugcinwa kwezingane, ukuthi ngubani ozophatha izingane kanye nokuthola ithuba lokubona izingane ezizalelwe ngaphandle komshado, bekulokhu kunqunywa ngasohlangothini lukababa. Lokhu bekulokhu kwenzeka yize kunokuhlwanyelwa kwamalungelo ezingane okwenzeka emhlabeni jikelele, kusukela ngeminyaka yawo-1960. UMthethosisekelo ka- 1996 wagcizelela amalungelo ezingane emthethweni waseNingizimu Afrika. Umbhali unombono wokuthi indlela yokwenza izinto ebhekisa ngasohlangothini lukababa iqophisana nendlela eqhakambisa ingane ebekwe kuMthethosisekelo kanye nasemthethweni wamazwe ngamazwe. End
Author Frans MahlobogwaneSource: Codicillus 46, pp 30 –34 (2005)More Less
Izinkantolo zibhekana nomsebenzi obucayi uma kumele zithole ukuthi yikuphi okuzosebenzela ingane kahle kunakho konke, ngenxa yokuthi akunandlela elula yokuthola ukuthi yikuphi lokho. Umbhali ubheka lokho okuthiwa okuzosebenzela ingane njengoba kukleliswe ku<I>McCall v McCall</I>. Iningi lezingane elizithola liphakathi komdonsiswano wokuthi ngubani ozogcina izingane, zihlushwa yingcindezi eyenzeka esikhathini eside nesifushane yokuthi zehlukanise phakathi ukwethembeka kwazo. Kusala imibuzo eminingi enikezana inselelo: njengokuthi ngabe ukuthola ukuthi yikuphi okuzosebenzela ingane kahle kusho ukubonelela konke okuthinta ingane noma ngabe kusho ukuthi izibonelelo ezithile kumele zilahlwe yini; ngabe lokho okuzosebenzela ingane kahle kumele kubukwe ngeso elibheke okuzokwenzeka maduzane; esikhathini esimaphakathi nendawo noma eside; ngabe kumele kubukwe ngasohlangothini olufaka nemizwa yomuntu ngokuthile noma ngakulolo olubheka isimo sodwa yini. Yize umbhali ebeka ukuthi lokho okuzosebenzela ingane kahle kumele kuvezwe ngabathathizinqumo abangabantu abadala, bebe bebheke isimo leso ngaphandle kokuxhuma neminye imifakela, kunokuthi babheke izifiso zengane ezihlanganise neminye imizwa, uyexwayisa ukuthi kuqashelwe ukubeka lezo zinto ezizosebenzela ingane ngokuthi kugxilwe kulokho okuzosebenzela umzali. End
The courts face a complex task when having to determine the best interests of the child, for there is no easy way of establishing what these interests are. This article examines interests of the child as listed in <I>McCall v McCall</I>. Most children who find themselves at the centre of a custody battle suffer the long-term and short-term stresses of divided loyalty. Several challenging questions remain: whether determining the best interests of the child means attending to everything that affects the child or whether certain considerations should be disregarded; whether the child's interest should be viewed from a short-term, medium-term or long-term perspective; whether they should be viewed from a subjective or an objective point of view. While the author submits that the best interests are to be determined by adult decision makers, on the basis of objective criteria rather than on the basis of a child's subjective wishes, he warns against conceptualising the interests of the child in terms of the interests of parents. End
Author Rudolph NengomeSource: Codicillus 46, pp 35 –41 (2005)More Less
The author discusses the liability of a public carrier by land and water. Earlier, cases that dealt with the liability of carriers by land extended the strict liability that applied to carriers by water only to carriers by land, by way of analogy and not as a matter of law. The Supreme Court of Appeal corrected these decisions in the case of <I>Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 (3) SA 42.</I> The author submits that with regard to the strict liability of the public carriers by water for reward, the <I>Anderson</I> decision is authority for the proposition that strict liability does not apply to carriers by land. He submits, therefore, that the liability of public carriers is similar to that of private carriers, which is based on fault. As regards carriers by water, the author submits that the common law rule that strict liability applies is considerably modified by the Carriage of Goods by Sea Act 1 of 1986, in terms of which liability is fault based. He concludes that statutory liability applies to public carriers by water. End
Umbhali uxoxa ngesibopho esisemthethweni sezinto ezisetshenziselwa ukuthwala ezingezikawonkewonke ezihamba emgwaqeni nasemanzini. Amacala avela esikhathini esingaphambilini ayebhekene nesibopho esisemthethweni salezo zinto zokuthwala zasemgwaqeni, yiwona ayebeka isinqumo ngesibopho esisemthethweni esiqinile ebesisebenza kuphela kulezo zinto zokuthwala zasemanzini, abe eselulelwa kulezo zinto zokuthwala emgwaqeni ngokuthi kususelwe isibonelo lapho, hhayi ngenxa yokuthi kwenziwa njengodaba lomthetho. INkantolo eNkulu yeziKhalo yabe seyizilungisa lezi zinqumo ecaleni lika-<I>Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 (3) SA 42.</I> Umbhali uveza ukuthi mayelana nokusetshenziswa kwesibopho esisemthethweni ngalokho kokuthwala kukawonkewonke ukuze kube khona okuzuzwayo, isinqumo sika-<I>Anderson</I> siyigunya lesiphakamiso sokuthi isibopho esisemthethweni esiqinile asisebenzi kulezo zinto zokuthwala emgqwaqeni. Ube esesho ngenxa yalokho ukuthi isibopho esisemthethweni sezinto zokuthwala emgwaqeni siyafana naleso sezinto zokuthwala zangasese esesekelwe phezu kwephutha. Mayelana nezinto zokuthwala zasemanzini, umbhali uveza ukuthi umtheshwana womthetho owejwayelekile wokuthi makusebenze isibopho esisemthethweni esiqinile uguqulwe ngokuthe xaxa nguMthetho 1 ka-1986 wokuThwalwa kweziMpahla oLwandle, okuthi ngawo isibopho esisemthethweni sesekelwe phezu kwephutha. Uqedela ngokuthi ukuba nesibopho ngokusemthethweni kuyasebenza ezintweni zokuthwala zikawonkewonke zasemanzini. End
Author Dire TladiSource: Codicillus 46, pp 42 –49 (2005)More Less
Umbhali uqhakambisa ezinye zezingqinamba ezingahle zibe nomthelela ekusebenzeni ngempumelelo kohlelo olubhekene nokuguquka kwesimo sezulu. Uveza ezinye zezimpawu ezisemqoka ezinikeza isivumelwano saseKyoto isimo saso esingafani nalutho olunye. Ngemva kwalokho, ucubungula ukuthi ngabe izimpawu ezigqamile zeKyoto zizoba namphumela muni, uma ukhona, ekhonweni lohlelo lokuguquka kwesimo sezulu lokuvimba ukuguquka kwesimo sezulu okwenzeka emhlabeni jikelele. Umbhali ubona ukuthi izinhloso zesivumelwano saseKyoto ziye zabekwa zaba sezansi kakhulu ukuthi zingaba nomphumela wangempela. Uma ngabe ukucabangela ezomnotho kuyikhona okusetshenziswayo ukuthola imiphumela kunempilo yomhlaba wonke, ukuguquka kwesimo sezulu kuseyingozi ekhona ngempela. End
This article highlights some of the issues that may impact on the efficacy of the climate change regime. It sets out some of the key features that give the Kyoto Protocol its unique character. The impact, if any, that the distinctive features of Kyoto will have on the ability of the climate change regime to stem the tide of global climate change is evaluated. The author contends that the goals of the Kyoto Protocol have been set too low to make any real impact. As long as economic considerations rather than global health determine outcomes, climate change remains a real threat. End
Author Simeon MaileSource: Codicillus 46, pp 50 –56 (2005)More Less
This article investigates the current state of education law at South African higher education institutions. The author acknowledges that education law is a hybrid of disciplines such as private law and public law, but points out that education law displays the same shortcoming as other disciplines, deliberately omitting critical pedagogy. The author looks at various ways of overcoming this inadequacy, which has been overlooked by current authorities in education law. End
Lo mbhalo ucubungula isimo esikhona njengamanje somthetho wezemfundo ezikhungweni zezeMfundo ePhakeme zaseNingizimu Afrika. Umbhali uyavuma ukuthi umthetho wezemfundo uyingxube yemikhakha enjengomthetho wangasese <I>(private law)</I> kanye nomthetho kawonkewonke <I> (public law)</I> kepha abuye athi uMthetho wezeMfundo ukhombisa ukungeneli kahle okufanayo nokweminye imikhakha: ukushiya ngaphandle imigomo esemqoka yokwenziwa kokufundisa. Umbhali ubheka izindlela ezahlukahlukene zokunqoba lokhu kungeneli, osekuqinisiwe yiziphathimandla ezikhona kwezomthetho wezemfundo. End
Author Sarah MagolegoSource: Codicillus 46, pp 57 –64 (2005)More Less
Umthetho wezwe unikeza lowo othathe wathwala isibopho esiyisiqinisekiso ngokomthetho mayelana nokubonelela isibopho somunye uma lowo ehluleka, iqoqo elibabazekayo lezizathu zokukhululwa ngaphansi kwalokho. Lo mbhalo ubhekene nomthetho owaziwa ngokuthi phecelezi yi `general prejudice rule' njengesinye sezizathu ezikhipha lowo othwele isibopho somunye, kuzibopho ezingaphansi kokuthi umuntu athwale isibopho esiyisiqinisekiso somunye. Umbhali ubheka isisekelo somthetho lowo kanye no<I>Bock and others v Duburoro Investments (Pty) Ltd</I> esimele isimo lapho kungazange kwemukelwe khona lo mthetho. Uthi izinkantolo kumele zihlale zivule umnyango mayelana nokuthuthuka kwezomthetho kulo mkhakha. End
South African law affords the surety a remarkable collection of grounds for discharge from liability under suretyship. This article discusses the so-called `general prejudice rule' as one of the grounds on which the surety may be discharged from the obligations under suretyship. The basis of the rule in <I>Bock and Others v Duburoro Investments (Pty) Ltd</I>, which represents an instance where the rule was rejected, is considered. The author maintains that the courts should open the door to legal developments in this area. End
And the Excellence in Tuition Award for 2004 goes to . . . Introduction to the Theory of Law! : variaAuthor Annalize JacobsSource: Codicillus 46, pp 65 –68 (2005)More Less
Extracted from text ... 65 VARIA And the Excellence in Tuition Award for 2004 goes to . . . Introduction to the Theory of Law! 1 The course Introduction to the Theory of Law Introduction to the Theory of Law, offered by the Department of Jurisprudence, is well-known to all law students. It is one of the compulsory foundation courses for the four-year LLB degree and consists of two first-level modules, namely ILW101?4 (the first module) and ILW102-5 (the second module). First-year learners in law must register for these modules before or together with some of the other LLB modules. ILW101?4 and ILW102?5 ..
Source: Codicillus 46, pp 69 –70 (2005)More Less
Extracted from text ... 69 The handicap of inexperience: A case of poetic justice When Susan Porreco claimed the prenuptial agreement she signed with Louis Porreco had to be voided because he had allegedly misrepresented the engagement ring as a diamond, Justice J Michael Eakin wrote a seven stanza opinion in Porreco v Porreco.21 It reads as follows: A groom must expect matrimonial pandemonium When his spouse finds he's given her a cubic zirconium instead of a diamond in her engagement band the one he said was worth twenty-one grand. Our deceiver would claim that when his bride relied on his claim of value, ..
Author Krupananthan AppaduSource: Codicillus 46 (2005)More Less
Extracted from text ... 70 EVERYONE IS SO AFRAID OF BEING SUED THESE DAYS! NOTICE: THE OWNER OF THIS CASTLE IS NOT RESPONSIBLE FOR INJURIES CAUSES BY ARROWS, SPEARS BOILING OIL OR FALLS FROM LADDERS Not responsible . . . We live in an era where lawsuits are becoming the order of the day. Some doctors will not stop at the scene of an accident for fear of malpractice suits or accusations of medical negligence. Cigarette companies and fast-food chains abroad have been hit with huge claims. The fear of being sued is getting more and more bizarre. One London five-star hotel has served ..
Author Magdaleen Van WykSource: Codicillus 46, pp 71 –73 (2005)More Less
Extracted from text ... 71 Review of Private International Law Conference The second Conference on Private International Law, hosted by the Institute for Private International Law in Southern Africa (at the newly merged University of Johannesburg) was held from 17 to 20 January 2005. Delegates came from Germany, the Netherlands, Austria, Belgium, Finland, New Zealand and South Africa. Most of the papers presented dealt with the theme of the conference, which was art, music, human rights and private international law. Social events included a tour of Sandton, a look at the Mandela statue and a visit to an African art market in Rosebank. ..
Author Christa RoodtSource: Codicillus 46, pp 73 –74 (2005)More Less
Extracted from text ... 73 Law professionals . . . Judge Crunch was a high achiever of many accolades the proud receiver his training in pedantry hid the fact, so it would seem to me that he was poacher turned into gamekeeper . . . 74 There once was a barrister called Lee of unimpeachable integrity was he he was king of the roll (top of the pole) on occasion advising Her Majesty There once was a lawyer called Burke judges enjoyed his unique little quirk he quoted masterly phrases (literary works from preceding ages) a budding poet in his own mind did lurk ..
The Right to Know : South Africa's Promotion of Administrative Justice and Access to Information Acts, Claudia Lange and Jakkie Wessels (eds) : book reviewAuthor Isabel SouthwoodSource: Codicillus 46, pp 75 –76 (2005)More Less
Extracted from text ... 75 About books Oor boeke The Right to Know: South Africa's Promotion of Administrative Justice and Access to Information Acts Claudia Lange and Jakkie Wessels (eds), Siber Ink, 2004, 236pp, soft cover R185.00. This book is the result of a series of two-week training programmes presented by the South African Justice College, in co-operation with the German Agency for Technical Co-operation (GTZ), for magistrates to equip themselves to hear applications in terms of the above-mentioned Acts. The book consists of 13 articles by prominent (mostly South African, but also a couple of German and one American) acknowledged experts in ..
Looking back, reaching forward : Reflections on the Truth and Reconciliation Commission of South Africa, Charles Villa-Vicencio and Wilhelm Verwoerd (eds) : book reviewAuthor Melodie SlabbertSource: Codicillus 46, pp 76 –78 (2005)More Less
Extracted from text ... 76 Looking back, reaching forward: Reflections on the Truth and Reconciliation Commission of South Africa Charles Villa-Vicencio and Wilhelm Verwoerd (eds), University of Cape Town Press, 2000, 322pp soft cover This book, with its very intriguing title, constitutes a tour de force as far as material dealing with South Africa's Truth and Reconciliation Commission is concerned. A brief look at the names of contributors reveals an impressive list: former Minister Kader Asmal, Hugh Corder, Richard Goldstone, Piet Meiring, Ebrahim Moosa, Dumisa Ntsebeza and Wilhelm Verwoerd, to name but a few. 77 The contributions also include one woman's personal encounter with ..
Source: Codicillus 46, pp 79 –85 (2005)More Less
Extracted from text ... 79 From the law reports Uit die vonnisverslae Mercantile Law | Handelsreg Profit made on the resale of the property ? whether such is a receipt of a revenue or capital nature ? Commissioner, South African Revenue Service v Weiner 2004 (4) SA 311 (SCA) In cases where a taxpayer sells property, the question as to whether the profits derived from the sale are taxable in his or her hands by reason of the proceeds constituting gross income or are not subject to tax because the proceeds constitute receipts or accruals of a capital nature, turns on the further ..
Author Albert MpuruSource: Codicillus 46, pp 86 –87 (2005)More Less
Extracted from text ... 86 Private Law | Privaatreg Law of Succession ? The constitutionality of s 1 of the Intestate Succession Act 81 of 1987 and ss 1 and 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 ? Daniels v Campbell 2004 (7) BCLR 735 (CC) The applicant married her deceased husband by Muslim rites in 1977. The marriage, which was monogamous, was not solemnised by a marriage officer appointed in terms of the Marriage Act 25 of 1961. Children were not born of this marriage, but the applicant and her deceased husband had children from previous marriages. In ..
Source: Codicillus 46, pp 87 –95 (2005)More Less
Extracted from text ... 87 Law of Succession ? The applicability of certain sections of the Maintenance of Surviving Spouses Act 27 of 1990 to partners in a permanent life partnership ? Robinson and Another v Volks2004 (1) BCRL 671 (CC) The first applicant had been in a relationship with one Shandling for more than sixteen years. Prior to Shandling's death, they had occupied immovable property together. The first applicant continued to occupy the property after his death in December 2002. Their relationship was described as `a permanent life partnership'. No marriage had been concluded although there would have been no legal obstacles. They ..