South African Law Journal - Volume 126, Issue 2, 2009
Volume 126, Issue 2, 2009
Source: South African Law Journal 126, pp 1 –26 (2009)More Less
Freedom of expression and the statutory regulation of 'political' advertising in the broadcast media : notesSource: South African Law Journal 126, pp 213 –231 (2009)More Less
Section 56 of the Electronic Communications Act 36 of 2005 (the ECA) prohibits radio and television broadcasting services from transmitting party election broadcasts (PEBs) and political advertisements except during an election period. The recent decision of the House of Lords in R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport  3 All ER 193 (HL) may have implications for the interpretation and application (and, possibly, the constitutionality) of this provision.
Placing human rights at the centre of public health : a critique of Minister of Health, Western Cape v Goliath : notesSource: South African Law Journal 126, pp 231 –245 (2009)More Less
State responses to the threats posed to the public health by communicable diseases often involve the restriction of individual liberties (for example, through isolation, quarantine or coerced medical treatment) with the aim of protecting the health of the general population. Whereas such responses are sometimes justified and necessary, they can tend to be overly authoritarian and restrictive, especially in the context of public hysteria and associated systemic over-reaction to sudden, lesser-known or widely feared epidemics (see Michael Kirby 'The never-ending paradoxes of HIV / AIDS and human rights' (2004) 4 African Human Rights LJ 163 at 167; Leslie London 'Confinement in the management of drug-resistant TB: The unsavoury prospect of balancing individual human rights and the public good' (2008) 1 SA Journal of Bioethics & Law 11 at 12). They also always involve the limitation of fundamental individual rights, most commonly that of freedom and security of the person. Accordingly, public health law presents a textbook example of the balancing of individual rights against social objectives.
Source: South African Law Journal 126, pp 246 –255 (2009)More Less
On 3 February 2009 the South African Competition Tribunal (CT) handed down a judgment in Competition Commission v Senwes Ltd Case No 110/CR/Dec06 (Senwes). In its decision the CT recognized the notion of a 'margin squeeze' as a distinct abuse in terms of s 8(c) of the Competition Act 89 of 1998 (the Act). By doing so, the CT chose to follow the prevailing academic and judicial opinion in the United Kingdom and Europe with regard to margin squeeze. In contrast to this convergence of opinion, the United States Supreme Court recently delivered judgment in Pacific Bell v linkLine Communications Inc No 07-512  (linkLine) in which it unanimously rejected the idea that a margin squeeze is an abuse of a dominant position under s 2 of the Sherman Act (formally known as the Act of July 2, 1890, ch 647, 26 Stat 209, codified as amended at 15 USC § 1 through 15 USC § 7).
Our aim is to explore the controversial concept of a margin squeeze. The initial part of this note will examine the theoretical underpinnings of this abuse. Thereafter, the article will focus on the Senwes decision and will compare its findings with the position in the United Kingdom, the European Union and the United States.
Author Caroline B. NcubeSource: South African Law Journal 126, pp 255 –269 (2009)More Less
South African company law is undergoing a major two-stage overhaul that will culminate in the coming into force of the Companies Act 71 of 2008. The first stage was completed with the coming into force of the Corporate Laws Amendment Act 24 of 2006 on 14 December 2007 (Proc 47 GG 30594 of 14 December 2007) and the second stage will be completed with the coming into force of the Companies Act, 2008. This Act has been assented to by the President and was published for information on 9 April 2009 (GN 421 GG 32121 of 9 April 2009).
Author Stuart WilsonSource: South African Law Journal 126, pp 270 –290 (2009)More Less
It's time to face facts. Section 26 of the Constitution and section 4(7) of the PIE Act limit common-law rights of ownership. A court will not normally order an eviction that will lead to homelessness unless it is satisfied that alternative accommodation has been or can be made available - usually as part of a municipality's housing programme. This article sets out how and why the jurisprudence has developed to this point. It also argues that more is required. The law has now created a tie between ownership and unlawful occupation - at least where homelessness would follow upon an eviction. The only way to break this tie is to hold the state accountable in a regular and predicable way for its obligations to shelter unlawful occupiers under threat of eviction. This article sketches out how this might be achieved. In doing so, it argues for a new approach to property relations - a 'new normality'.
Costs sanctions : the critical instrument in the development of commercial mediation in South AfricaAuthor Ronan FeehilySource: South African Law Journal 126, pp 291 –315 (2009)More Less
Costs are a significant issue for commercial disputants, and are often the primary reason that parties are looking to mediation in order to resolve their disputes in a cost-effective manner. The article looks at the approach taken in England in order to equip courts with the powers and authority to use mediation as a costs-containment device. It reviews the changes to the Civil Procedure Rules ('CPR') in England that have revolutionised the approach the judiciary takes in dealing with case management and in encouraging parties to mediate through the use of costs sanctions. The possibility of the CPR having an impact in South Africa, despite the absence of an equivalent South African statute, is also reviewed.
The implications of attempting to assess a party's conduct in order to determine whether a costs sanction is appropriate in the context of mediation confidentiality is also dealt with. The rules proposed in efforts to assess 'good faith' conduct in mediation are reviewed in detail. While it is suggested that the objective criteria developed in seminal cases in England is the correct approach where parties agree to mediate their dispute after it arises, where there is a pre-existing agreement to mediate, it is suggested that the court in a subsequent action dealing with the dispute should be equipped with the necessary power to excuse a party if it can be shown that mediation would have been unreasonable in the circumstances.
Having established the concept of a potential costs sanction in the National Credit Act, it is submitted that the legislature should extend the principle to cover commercial disputes in circumstances where the parties have voluntarily agreed to mediate, and one of the parties subsequently unreasonably refuses. While there is no case law or statute in South Africa dealing with costs sanctions in response to an unreasonable refusal to mediate a commercial dispute, it is suggested that costs sanctions could possibly be awarded under a provision in the Uniform Rules or by analogy with existing case law. It is concluded that it remains to be seen whether the judiciary proves sufficiently proactive to make such a ruling when an appropriate case arises.
Author Gustav BrinkSource: South African Law Journal 126, pp 316 –359 (2009)More Less
Anti-dumping investigations require the domestic industry to prove the presence of injurious dumping before government may impose remedial measures in the form of anti-dumping duties. The International Trade Administration Commission (ITAC) has now proposed that national interest should also be considered in this determination. This will add considerable uncertainty in investigations, especially in view of the lack of transparency already present in such investigations. Although 12 of the 42 territories worldwide that have initiated anti-dumping investigations since the establishment of the World Trade Organisation in 1995 have national interest provisions in their legislation, research has shown that this seldom plays a role in investigations.
Author Stefanie RoehrsSource: South African Law Journal 126, pp 360 –397 (2009)More Less
Although HIV / AIDS has claimed centre stage in public and political debates over the last few years, South African scholars largely refrain from examining and discussing the right to privacy and its limitations in the context of HIV / AIDS. Until the Constitutional Court's recent decision in NM and Others v Smith and Others, the lack of literature was accompanied by a scarcity of case law regarding the importance of the protection of privacy of HIV-infected people. This article aims to set the scene for a debate on HIV / AIDS and privacy: the scope of the right, its importance for HIV-infected individuals and the justifiability of limitations in the form of public health interventions.
As an introduction to the subject matter, the first part of this article provides a brief overview of academic discussion around the right to privacy. The article examines the scope of the right and its distinction from other human rights, before assessing its importance for people living with HIV / AIDS Although both the common law and the constitutional law protect privacy, concerns are raised as to whether the legal mechanisms are sufficient to truly protect HIV-infected individuals.
The second part of the article focuses on public health interventions that limit the right to privacy, and thoroughly analyses their implications. First, current health guidelines on HIV disclosure by health care professionals are reviewed, and, drawing on comparative health policies, it is debated whether partner notification programmes should be introduced in South Africa. Interesting questions around the justifiability of invasions of privacy and health care professional' legal duty to warn patients' partners are discussed.
The article then looks at HIV disclosures envisaged by recent legislative developments. The Criminal Law (Sexual Offences and Related Matters) Amendment Act makes provision for the compulsory HIV testing of alleged sexual and other offenders. The article undertakes a thorough examination of these statutory provisions and raises serious questions in relation to their justifiability.
Author J.L. PretoriusSource: South African Law Journal 126, pp 398 –421 (2009)More Less
In the recent case of R v Kapp, the Canadian Supreme Court reconsidered the relationship between affirmative action and the right to non-discrimination. Unlike the previous judgment of Lovelace v Ontario, the court decided that governmental measures with an ameliorative objective are not susceptible to an attack based on the right to non-discrimination. In essence, the court held that in order to be constitutional, affirmative action needs to satisfy a rational relationship test only. This deviates from the approach in Lovelace, where the court attempted to establish an integrated approach in order to facilitate the dual function of the equality clause to both allow remedial measures and to prevent discrimination. Kapp did not succeed in aligning the affirmative action clause with a comprehensive, inclusive and integrative notion of substantive equality. The judgment is important for South Africa because of the methodological and doctrinal similarity of the two countries' equality law, as well as the textual resemblance between their respective affirmative action clauses and the fact that the Constitutional Court's leading judgment in this respect, Minister of Finance v Van Heerden, closely resembles the reasoning of Kapp .