South African Law Journal - Volume 128, Issue 3, 2011
Volume 128, Issue 3, 2011
Determination of the effect of the release of methotrexate from an in situ forming implant on colon carcinoma cells and in vivo studies in the rat model : cum laudeSource: South African Law Journal 128, pp 48 –50 (2011)More Less
Author Anton FaganSource: South African Law Journal 128, pp 395 –407 (2011)More Less
Albert and Ben are assembling collages in the art class. Albert shows Ben a picture, cut from a National Geographic, of two dogs copulating, 'doggiestyle', as is their wont. The two boys laugh about this, for they are boys, and boys find that kind of thing funny. Ben says, 'Now have a look at this.' And he takes the pictures of the heads of the principal and her deputy, which he has cut from the school magazine for his collage, and places one over the head of the one dog, and one over the head of the other. The two boys laugh even more loudly, for they are boys, and boys find this kind of thing very funny. At that moment Charlene pops up and peeks over their shoulders. She laughs (possibly because girls find that kind of thing funny too). And she takes a picture of the image, lying on the art desk, with her cell phone. She sends the image to her friend Delia who, because she also finds it funny, in turn sends it on to three hundred close friends on Facebook (because Delia is a child, and that is what children do).
Source: South African Law Journal 128, pp 407 –419 (2011)More Less
In this note we propose to deal, from a particular vantage point, with the Constitutional Court's judgment in Le Roux & others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC): we investigate how heteronormativity (as a cultural phenomenon) influences the determination in the majority judgment (authored by Brand AJ) that defamation had been committed by the applicants. By using the term 'heteronormativity' we mean to gesture at the set of cultural practices and assumptions that privilege heterosexuality and assume that the monogamous heterosexual couples represent the principle of social union itself.
Author John CampbellSource: South African Law Journal 128, pp 419 –427 (2011)More Less
The Constitutional Court judgments in Le Roux & others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) give rise to many concerns that will no doubt be commented on in the coming months and years. I wish, in this short note, to focus only on what was said about the pleading of meaning in the defamation judgment. In other words, I do not address the freedom of speech issues, but rather the fair trial issue that is raised in this judgment.
What you don't know can't hurt you : the Supreme Court of Appeal and the presumptions of paternity : notesAuthor Elsje BonthuysSource: South African Law Journal 128, pp 427 –436 (2011)More Less
The Supreme Court of Appeal in YM v LB 2010 (6) SA 338 (SCA) had the opportunity to pronounce upon the tricky issue of the use of DNA evidence to rebut the presumptions of paternity. However, the court chose not to avail themselves of it, holding that '[p]aternity was thus not actually in dispute' (para 12) and that, because the father of the child did not deny paternity in his affidavits, paternity could be established on a balance of probabilities without compelling the mother to provide a sample for DNA testing.
The case in favour of substantive tenure reform in the landlord-tenant framework : the Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele; City of Johannesburg Metropolitan Municipality v Blue Moonlight : notesSource: South African Law Journal 128, pp 436 –451 (2011)More Less
The tenure reform programme, which forms part of the land reform programme, consists of two strategies. These are, first, the transformation of weak tenure through the implementation of dedicated structural reforms, and secondly, the development of general anti-eviction provisions that prevent arbitrary forced removals, which were traditionally associated with apartheid land law (A J van der Walt Constitutional Property Law (2005) 309-10).
A man of bad character has not so much to lose' : truth as a defence in the South African law of defamationAuthor Eric DescheemaekerSource: South African Law Journal 128, pp 452 –478 (2011)More Less
This article examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.
Author Rosaan KrugerSource: South African Law Journal 128, pp 479 –512 (2011)More Less
The 1997 formulation of the test in Harksen by Constitutional Court seemed to settle the constitutional standards in respect of equality and unfair discrimination. In this article this test is scrutinised closely with a view to clarify the different aspects of the right protected in s 9. Reliance is further placed on Canadian commentary which interrogates the dignity-centred analysis of the Canadian Supreme Court in relation to the Canadian Charter's prohibition of discrimination. The similar insistence on dignity as the interest protected by the right to equality opens up new possibilities in the South African context. Accordingly, specific 'wrongs' or 'indignities' of inequality are identified, which refines the Harksen test. The identification of the indignities, it is suggested, assists litigants and the court on a practical level when determining the fairness or otherwise of discrimination.
Source: South African Law Journal 128, pp 513 –532 (2011)More Less
In this article, the appropriate formulation of the so-called 'epistemic rules of evidence' - the rules which have the primary objective of promoting accuracy in fact-finding - are considered in the context of a legal system such as South Africa's, where no jury system operates. A fundamental question is whether these epistemic rules of evidence should be retained in the absence of a jury-trial system. The work of two of the most prominent international authorities on this matter, Damaska and Schauer, are thoroughly discussed in part II of the article. The focus then shifts to the relationship between the general evidentiary principle of relevance and the epistemic rules. Two of the most important rules - the rule on similar fact evidence and the hearsay rule - are analysed to give context to the debate. The argument is ultimately that these rules are merely an expression of the general rule that for evidence to be admissible it must be relevant in that probative value must exceed prejudicial effect. The specified epistemic exclusionary rules such as the similar fact and hearsay rules are merely specialised expressions of the same general relevance rule, and modern reforms have been directed at getting rid of rigid categories of exception in favour of the application of general principles. But, importantly, the authors argue that this is not necessarily a free proof argument, and that the rules remain important and significant in a non-jury system, provided that they are understood as flexible, principled rules that have a role to play in maximising accuracy in decision making, exposing judicial reasoning, and providing an appealable data base.
Tax impediments to holding company structures in Belgium, Ireland and the United Kingdom : caution for South AfricaAuthor Thabo LegwailaSource: South African Law Journal 128, pp 533 –559 (2011)More Less
The South African government intends promoting South Africa as a gateway for investment into Africa. This will necessitate some important changes being made to South Africa's legal and tax framework. It is envisioned that the proposed investment in Africa and South Africa would take the form of holding companies incorporated in South Africa and holding interests in operating subsidiaries located in South Africa or the rest of Africa. This article refers specifically to the creation of tax regimes that are attractive the establishment of holding companies, and investigates how three countries - Belgium, Ireland and the UK - have struggled to put in place such systems. The article goes on to compare these jurisdictions with two others that have had greater success, viz the Netherlands and Mauritius. The article concludes by identifying some lessons that could be learned by South Africa from the respective experiences of the countries whose tax regimes are discussed in the article.
The interplay between registered and unregistered domestic partnerships under the Draft Domestic Patnerships Bill, 2008, and the potential role of the (contextualised) putative marriage doctrineAuthor Bradley SmithSource: South African Law Journal 128, pp 560 –593 (2011)More Less
In 2008 the South African legislature published a draft Domestic Partnerships Bill aimed at regulating the position of persons who live together outside of a legal marriage or civil union. The Bill makes provision for both registered and unregistered domestic partnerships. While the former involves a formal registration procedure, the latter allows either partner to an unregistered partnership that satisfies certain threshold criteria to 'opt-in' to the protection provided by the Bill by approaching a competent court, after the termination of the union, for certain relief. This article considers the salient features of, and interplay between, the partnership options under the Bill with a view to ascertaining whether the common law putative marriage doctrine is capable of being extended in order to assist partners who are of the bona fide belief that their partnerships will be recognised and protected under the Bill, while this is in reality not the case. The conclusion is reached that while the doctrine may in principle be extended to invalid 'registered' domestic partnerships, a refusal to extend the doctrine to 'unregistered' domestic partnerships will pass constitutional muster. This notwithstanding, the doctrine as currently applied in the context of the law of marriage is in need of being developed in order to cater for polygamous civil 'marriages', and this has important implications for applying the doctrine to domestic partnerships. The article also concludes that the Bill itself requires certain amendments, and that the applicability of the putative marriage doctrine depends on whether or not these amendments are made.
A V Dicey. General Characteristics of English Constitutionalism. Six Unpublished Lectures, Peter Raina (Ed.) : book reviewAuthor D.M. DavisSource: South African Law Journal 128, pp 600 –601 (2011)More Less
In 1885 Albert Venn Dicey, then Vinerian Professor of English Law in the University of Oxford, published his Introduction to the Study of the Law of the Constitution. It proved, arguably, to be the most influential text dealing with constitutional law from the perspective of English constitutionalism. Generations of South African students would have engaged with this work in their study of South African constitutional law, certainly until 1994 when constitutional democracy dawned.