Codicillus - Volume 46, Issue 2, 2005
Volume 46, Issue 2, 2005
Author Marie McGregorSource: Codicillus 46, pp 1 –12 (2005)More Less
Categorisation as a method is generally used in law to determine the beneficiaries of affirmative action. Inherent in the method are advantages but also deficiencies. The latter include over-inclusiveness, the fact that those better off in the categories generally benefit from affirmative action, under-inclusiveness, and the fact that multiple disadvantage is not recognised. In this article, the author argues that shortcomings of categorisation, which result in affirmative action measures not reaching their intended beneficiaries, should be acknowledged and dealt with. End
Ukuhlelwa ngokwemikhakha njengendlela esetshenziswayo, kuvame ukusetshenziswa kwezomthetho ukuthola labo okumele basizakale ngokubonelelwa kwalabo ababencishwe amathuba ngaphambilini. Kule ndlela kunamaphuzu amahle akhelwe kuyo kodwa kukhona nezinto ezintulekayo kuyo. Leli phuzu lokugcina libandakanya ukufakwa kwabantu kuze kweqe, iqiniso lokuthi labo abasesimweni esingconywana kule mikhakha kaningi bayasizakala ekubonelelweni kwababencishwe amathuba, ukufakwa kwabantu ngendlela engenele, kanye, nephuzu lokuthi ukuba sesimweni esingesihle okuphindaphindekile akwemukelwa. Kulo mbhalo, umbhali uveza ukuthi amaphutha okuhlelwa ngokwemikhakha aye abe nomphumela wokuthi ukubonelelwa kwababencishwe amathuba kungafiki kulabo okuhloswe ukuthi basizakale, kumele avunywe bese eyalungiswa. End
Author Silas MothupiSource: Codicillus 46, pp 13 –23 (2005)More Less
UMthethosisekelo ka-1996 weRiphabliki yaseNingizimu Afrika, usuhlele kabusha indlela amajaji enza ngayo umsebenzi wawo. Kunethuba lokusebenzisa ubuciko nelokuzihlola kwezomthetho. Lo mbhalo ukhombisa ukuthi izinqumo ezithathwe ngabambalwa, ziba nomthelela kanjani ekuthuthukisweni kwendlela umthetho waseNingizimu Afrika osebenzisa ngayo umthethosisekelo, inqobo nje uma lokho kubonelela imigomo engaphandle, eyomphakathi kanye neyangaphakathi yomthetho. End
The Constitution of the Republic of South Africa, 1996, has reconfigured the way judges do their work. There is scope for jurisprudential creativity and self-reflection. This article illustrates how minority decisions contribute to the development of South African jurisprudence of constitutional interpretation, provided the interpretation accommodates external, societal and internal jurisprudential values. End
Author Rudolph NengomeSource: Codicillus 46, pp 24 –44 (2005)More Less
Traditionally, financial institutions' primary responsibility was to maintain safe and sound business principles. The paradigm appears to be changing to include social responsibilities such as providing mortgage credit to previously excluded areas and people. This article analyses the constitutional basis of the legislation on fair lending and also looks at the prospects for successful enforcement. The fair lending legislation comprises the Home Loan and Mortgage Disclosure Act and the Community Reinvestment Bill. The Home Loan and Mortgage Disclosure Act seeks to regulate financial institutions to disclose their lending patterns. While the Community Reinvestment Bill seeks to regulate financial institutions to ensure that they treat like customers alike and make credit available using a neutral yardstick, and not according to race, gender, sex, and so on. The Community Reinvestment Bill also goes beyond equal treatment requiring financial institutions to lend to low and medium income earners. End
Kudala isibopho esiphambili sezinhlangano zezezimali kwakungukugcina imigomo ephephile nephelele yezebhizinisi. Sekubonakala sengathi le ndlela yokwenza izinto isiyaguquka, isifaka nezibopho ngokwezokuhlalisana kwabantu njengokunikeza abantu nezindawo ezazibekelwe eceleni, isikweletu sokuthenga ngokubambisa ngempahla ethile. Lo mbhalo ucubungula isisekelo sangokomthethosisekelo somthetho wokweboleka ngedlela elungile futhi ubuye ubheke namathuba okwenziwa kwaso ngempumelelo. Umthetho wokweboleka ngendlela elungile uqukethe iHome Loan and Mortgage Disclosure Act kanye neCommunity Reinvestment Bill (Community Reinvestment Bill). I-Home Loan and Mortgage Disclosure Act ihlose ukuhambisa ngokomthetho ukuthi izinhlangano zezezimali ziveze amaphethini azo okwebolekisa. I-Community Reinvestment Bill yona ihlose ukuphatha ngokomthetho izinhlangano zezezimali ukuqinisekisa ukuthi ziphatha amakhasimende ngokufana futhi zenze ukuthi akwazi ukuthola isikweletu ngokusebenzisa isilinganiso esingabheki ubuhlanga, ubulili, njll. I-Community Reinvestment Bill ibuye ikubheke ukuthi ukuphathwa ngokulinganayo akwenele, bese iqhubeka ngokulindela ukuthi izinhlangano zezezimali zebolekise nakulabo abahola kancane. End
Author Christian SchulzeSource: Codicillus 46, pp 45 –59 (2005)More Less
Lo mbhalo ubheka ukulamula kwezentengiso kumazwe ngamazwe. Kunikezwa incazelo yokulamula; kudingidwe nezinye izindlela zokuxazulula izingxabano. Kuxoxwa ngokulamula kwezamazwe ngamazwe nokulamula kwezentengiso, nangokubaluleka komehluko ophakathi kwalokhu okubili. Okokugcina, kubhekwa ukulamula kwezamazwe ngamazwe kanye nokuqhutshwa kwezinqumo zokulamula eziqhamuka emazweni angaphandle maqondana nomthetho waseNingizimu Afrika. End
An arbitrator is a person chosen by the parties for purposes of resolving a dispute between them. This article distinguishes arbitration from other non-judicial means of dispute resolution. The author explains both international and commercial arbitration and the practical significance of the differences between the two. He also discusses international arbitration and the enforcement of foreign arbitral awards in terms of South African law. End
Author Kathleen Anne BethuneSource: Codicillus 46, pp 60 –67 (2005)More Less
Various solutions have been suggested to the problem of classification in conflict of laws. In this essay a Unisa student grapples with the enlightened lex fori and via media approaches. An extended metaphor is used to concretise the concepts. This is followed by a brief survey of cases and academic opinion. Finally Buddhist teachings on Enlightenment and the Middle Way provide refuge. End
Sekuye kwaphakanyiswa izixazululo ezahlukahlukene mayelana nenkinga yokufakwa ngaphansi kwemikhakha ethile maqondana nokungqubuzana kwemithetho. Kule eseyi umfundi wakwa-Unisa ushikishana ne-lex fori ekhanyiselwe kanye nezindlela ezisebenzisa ezokwazisa. Kusetshenziswa umfanekisomqondo oweluliwe ukuphilisa le miqondo. Lokhu kulandelwa ukuhlolwa okufushane kwamacala kanye nemibono eyesekelwe emicabangweni yezemfundo. Okokugcina izimfundiso zikaBhuda ngokuKhanyiselwa kanye nangeNdlela emaPhakathi ziletha isiphephelo. End
Author Yvonne MokgoroSource: Codicillus 46, pp 68 –72 (2005)More Less
Extracted from text ... 68 VARIA Opening of the College of Law, University of South Africa, on 8 February 2005 Legal education 2005: A mechanism for the eradication of poverty Speech delivered by Justice Yvonne Mokgoro, Judge of the Constitutional Court 1 Introduction A significant feature of our Constitution is the recognition of specific socioeconomic rights. They encompass the right to a basic education, the right to sufficient food and water, access to adequate shelter, to health care services, and to social security (which includes the right to social assistance where people are unable to support themselves and their dependants). The eradication of ..
Author Frans Mashilo MahlobogwaneSource: Codicillus 46 (2005)More Less
Extracted from text ... 73 Melodia Unisa Chorale: A brief profile Frans Mashilo Mahlobogwane, Choir member, Department of Jurisprudence, University of South Africa The Melodia Unisa Chorale was established in March 2000 as a choral organisation to cater for both students and staff of Unisa with a keen interest in being actively involved in choral singing. Its founding conductor was Prof S Shole of the Department of African Languages. Since its inception, it has participated actively in university events such as the launch of the National Reading Campaign, launch of Unisa's AIDS Centre, the investiture of the Chancellor and the Vice Chancellor, University ..
Author Gardiol Van NiekerkSource: Codicillus 46, pp 74 –77 (2005)More Less
Extracted from text ... 74 About books Oor boeke The law of commoners and kings: Narratives of a rural Transkei magistrate Dial Ndima Unisa Press, 2004, pp 129 and xxii, soft cover The Law of Commoners and Kings, subtitled Narratives of a Rural Transkei Magistrate, is a delight. It should be made compulsory reading for every puffedup youngster with a law degree. Ndima's narratives illustrate the difference between Roman-Dutch law as practised in South Africa and the old natural order followed before the white man came to Africa. The laws, one rigid and codified, and the other handed down orally, clash because of the ..
Author Mpheane LepakuSource: Codicillus 46, pp 78 –84 (2005)More Less
Extracted from text ... 78 From the law reports Uit die vonnisverslae Mercantile Law | Handelsreg Exclusivity agreements in marketing of agricultural products ? Patensie Sitrus Beherend Beperk v The Competition Commission and Others 2003 (6) SA 474 CAC The marketing of agricultural products was initially regulated by the control boards, in terms of the Marketing Act 59 of 1968. The control boards or marketing boards controlled every movement in the marketing of agricultural products, and also the pricing, the quality and the standards. These boards comprised farmers organised under a particular cooperative, which in turn was an agent of the control board. ..
Author Matome Melford RatibaSource: Codicillus 46, pp 84 –86 (2005)More Less
Extracted from text ... 84 African Indigenous Law | Afrika Inheemse reg Administration of estates ? intestate succession ? black persons ? s 23 of the Black Administration Act 38 of 1927 and the rule of male primogeniture in African customary law ? constitutionality thereof ? BHE & Others v Magistrate Khayelitsha & Another; Shibi v Sithole and Another; SAHRC v The President of the Republic of South Africa and Another 2005 (1) SA 580 CC This case touches on a variety of issues: succession, gender law, customary law, child law, marriage law and the broader persons and family law, but this summary ..
Source: Codicillus 46, pp 86 –92 (2005)More Less
Extracted from text ... 86 Private Law | Privaatreg Trust and trustee ? Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA) This case deals with a family trust. The first trustees were the Parkers and one Senekal, the family attorney. But Senekal resigned in 1996. When Senekal resigned the Parkers failed for nearly two years to appoint a third trustee as the trust deed required of them. This left the Parkers as the only trustees. In a defence against the bank's claim for repayments of loans which were accepted by the Parkers as the only ..
Author Tsakani NomvelaSource: Codicillus 46, pp 92 –93 (2005)More Less
Extracted from text ... 92 Family Law | Familiereg Permanent life partnership ? Maintenance of Surviving Spouses Act 27 of 1990 ? s 1 ? Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) This was an appeal and confirmatory case which concerned the interpretation and constitutionality of s 2(1), read with s 1 of the Maintenance of the Surviving Spouses Act 27 of 1990, which confers on surviving spouses the right to claim maintenance from the estate of their deceased spouse if they are unable to support themselves. The appeal follows from the order that was made in the Cape ..
Author Annika LombardSource: Codicillus 46, pp 93 –99 (2005)More Less
Extracted from text ... 93 Law of Delict | Deliktereg Vicarious liability of employer ? rape committed by employees of SAPD ? NK v Minister of Safety and Security Case CCT 52/04 Facts During the early hours of the morning of 27 March 1999 the applicant found 94 herself stranded because her male companion had refused to take her home after an argument. She was then just 20 years old. She walked to a nearby petrol station to find a telephone to phone her mother to ask her to come and fetch her. The attendant at the station's 24-hour shop told her that ..
Author M.C. MareSource: Codicillus 46, pp 100 –112 (2005)More Less
Extracted from text ... 100 From the dean's desk Van die dekaan se tafel 1 Tuition Model The School of Law has decided to replace the current semester module system for the LLB modules with a year module system. The year module system will be phased in to give students time to adapt to the new system. Many factors contributed to the decision to switch to a year module. The Faculty of Law launched an investigation into the semester system in 2002. The findings were that the semester is not ideally suited for distance education. Semesters are just too short in a distance education ..