South African Law Journal - Volume 131, Issue 1, 2014
Volume 131, Issue 1, 2014
Author L.T.C. HarmsSource: South African Law Journal 131, pp 3 –10 (2014)More Less
Puisne judges (judges of first instance) justifiably feel that they are at the bottom of the food chain - to be devoured when least expected by what they perceive to be the sharks in appeal courts. Their lot is exacerbated by the fact that courts of appeal are prepared to decide cases on issues that were never canvassed at first instance; that appeal tribunals do not defer to their factual findings; and that they have a duty to develop the common law even if not called upon to do so by the parties. In spite of lip service to a contrary position, the Constitutional Court assumes that all that puisne judges have to do is to think laterally while forgetting that they work without the privilege of clergy or clerks.
Author Janine HowardSource: South African Law Journal 131, pp 11 –27 (2014)More Less
The relationship between mining companies and the communities in which they operate has historically been characterised by strong power imbalances (see I B Sutton 'The Diggers' Revolt in Griqualand West, 1875' (1979) 12 International Journal of African Historical Studies 40 at 41). However, it is the events of 2012, heralded by many as the 'Miner Spring', which have shone a light on this contentious relationship (see Ed Stoddard Mail & Guardian ''Miner Spring' may lead to more unrest' Mail & Guardian 6 September 2012 available at http://mg.co.za/article/2012-09-06-miner-spring-may-lead-to-more-unrest, accessed on 4 December 2012; Patrick Kane 'Could we be about to see a Miners Spring?' Huffington Post 25 June 2012 available at http://www.huffingtonpost.com/patrick-kane/south-africa-mine_b_1967275.html, accessed on 4 December 2012). Partly because of this, attention has turned to the concept of Corporate Social Responsibility ('CSR') and how it is being translated into the obligations mining companies owe mine communities. Like all private corporations, mining companies are created for the primary purpose of generating profits. As such, social and environmental considerations are often neglected.
Universal jurisdiction and South Africa's perspective on the investigation of international crimes : notesAuthor Lilian ChenwiSource: South African Law Journal 131, pp 27 –45 (2014)More Less
Universal jurisdiction is an important yet contentious jurisdictional principle in international law, despite more than 100 states worldwide having universal jurisdiction legislation (Amnesty International Universal Jurisdiction: A Preliminary Survey of Legislation Around the World (2012) 1-2). The principle has dominated discussions at both the international and African regional levels, with many voicing practical, political and policy concerns with regard to its application.
Author Saleem SeedatSource: South African Law Journal 131, pp 45 –60 (2014)More Less
In its most basic sense, a contract of employment determines the relationship between an employer and an employee. The employee places his effort, skills or knowledge at the disposal of an employer in a manner that allows the employer to have some control or authority over the employee, in return for a fixed or ascertainable remuneration.
S v Mukwevho and the elevation of a 'minimum sentencing fact' to an element of the offence of the unlawful possession of a firearm : notesAuthor Angus McKenzieSource: South African Law Journal 131, pp 61 –68 (2014)More Less
In the matter of S v Mukwevho 2010 (1) SACR 349 (GSJ), the South Gauteng High Court was called upon to consider the appeal of a person who had been convicted by a regional magistrate's court of having contravened two sections of the Firearms Control Act 60 of 2000. The two offences are commonly referred to as (a) the unlawful possession of a firearm (s 3 read with ss 1, 103, 117, 120(1)(a), 121, read with Schedule 4 and s 151 of the Firearms Control Act, and further read with s 250 of the Criminal Procedure Act 51 of 1977) and (b) the unlawful possession of ammunition (s 90 read with ss 1, 103, 117, 120(1)(a), 121, read with Schedule 4 and s 151 of the Firearms Control Act, and further read with s 250 of the Criminal Procedure Act) respectively. The court (Willis J and Farber AJ) set aside both of the convictions, for three alternate reasons.
Source: South African Law Journal 131, pp 69 –87 (2014)More Less
This article deals with the doctrine of substance over form in so far as it relates to committing fraud on the law (or the doctrine of fraus legis), and the connected question of when a transaction can be said to be simulated. These three doctrinal concepts are inter-linked and their interstices will be explored with reference to the case law. The aim is to shed light particularly on the last issue - simulated transactions - and to answer the question whether dishonesty remains a requirement for a finding that a transaction is simulated. This enquiry is prompted by dicta in the recent case of NWK which tend to suggest that in certain circumstances a transaction might be deemed to be simulated even in the absence of fraud.
Author Raheel AhmedSource: South African Law Journal 131, pp 88 –108 (2014)More Less
'Contributory intent' is a term used to determine the extent of the plaintiff's fault by a method which is analogous to that of determining intent. It may be applied as a complete defence to exclude delictual liability in terms of the common law in instances where the plaintiff intentionally or voluntarily assumes the risk of harm, thereby cancelling out the defendant's fault (in the form of negligence) and hence, delictual liability. Our courts, when faced with instances of voluntary assumption of risk on the part of the plaintiff, are unsure whether consent, contributory intent or contributory negligence is the appropriate defence. This uncertainty stems from the failure of the adjudicators to grasp fully the requirements of the defences. Nevertheless, there are numerous cases in our law which outline sufficient practical and theoretical grounds for the defence of contributory intent to be recognised, developed and incorporated properly as a complete defence in our law.
Blind justice? Forensic science and the use of closed circuit television images as identification evidence in South AfricaSource: South African Law Journal 131, pp 109 –148 (2014)More Less
This article reviews the standard legal responses to forensic science and medicine evidence in South Africa. Using the example of the interpretation of closed circuit television ('CCTV') images of an armed robbery to identify the alleged offenders, we explore the deficiencies in contemporary forensic practice in light of recent international inquiries and recommendations and evaluate the corresponding limitations with trials, appeals and legal personnel in South Africa. We argue that greater attention needs to be paid to the reliability of opinions characterised as 'expert' before they are admitted and relied upon in criminal proceedings. We suggest that prosecutors, judges and defence lawyers should be more attentive to demonstrable evidence, preferably independent scientific studies, that confirm abilities and provide empirical support for the opinions expressed by those recognised by courts as experts.
Development, the right to the city and the legal and constitutional responsibilities of local government in South AfricaAuthor Marius PieterseSource: South African Law Journal 131, pp 149 –177 (2014)More Less
As the world population rapidly urbanises, cities and towns are increasingly the sites at which, and the means through which, civil and political, as well as socio-economic rights are actualised. This reality is sparking a shift in focus in development and governance studies, with growing attention being paid to urban governance as means for creating and sustaining urban environments that are conducive to the realisation and enjoyment of such rights. In reflecting upon the extent to which this shift in emphasis from national to (urban) local governance is finding expression in South African constitutional law and jurisprudence, this article pays closer attention to the constitutional powers, functions and responsibilities of local government in relation to the enjoyment of socio-economic rights and the spatial and political transformation of urban South Africa. In doing this, the article adopts a perspective that has thus far been under-utilised in South African legal scholarship - that provided by development-based literature on the right to the city. It argues that this perspective is useful for understanding contemporary urban constitutional citizenship, as well as the constitutional roles and responsibilities of local government in working towards urban social justice.
Author Stephen WagenerSource: South African Law Journal 131, pp 178 –204 (2014)More Less
This article examines the relationships giving rise to vicarious liability in South African law and questions the orthodox view that there are (at least) three such relationships. In this article, I put forward the view that South African courts have understood the employment relationship more broadly than as a contract of service, and have imposed liability in the absence of such a contract between the primary wrongdoer and the defendant, and even in spite of such a contract existing between the primary wrongdoer and a third person. The courts have imposed liability in terms of these other two relationships which are said to give rise to vicarious liability only in so far as they resemble the employment relationship. I argue further that this understanding of the relationships has significant implications, amongst others, for cases involving liability for a borrowed servant and for those involving independent contractors.
Author Daniel VisserSource: South African Law Journal 131, pp 205 –207 (2014)More Less
On 2 March 2013 Robert Feenstra, Emeritus Professor of Roman Law and its History at the University of Leyden, died aged 92. 'Brave to the last moment, debilitated by illness, but still strong and clear of mind' read the official death notice issued by his family. One of the greatest legal historians was no more - and Margreet Ahsmann, one of his former doctoral students and now a judge and senior vice-president of the court in the Hague, put into words the feeling that all who knew him experienced when they heard the news: he had been so much a part of our lives for so long, that somehow we all, quite unreasonably, thought that he would always be there.
The Selfless Constitution: Experimentation and Flourishing as Foundations of South Africa's Basic Law, Stu Woolman : book reviewAuthor Patrick LentaSource: South African Law Journal 131, pp 208 –210 (2014)More Less
Despite more than once describing his endeavour in The Selfless Constitution as modest, Stu Woolman sets himself the ambitious task of elucidating the foundations and purposes of the South African Constitution and critiquing the jurisprudence it has engendered. He offers a pragmatist vision of constitutionalism that is significantly influenced by 'experimental constitutionalism', a theoretical approach developed by a group of constitutional lawyers at - in one case, formerly at - the Columbia Law School, including Michael Dorf, Charles Sabel and William Simon. Woolman draws on work in the fields of experimental philosophy, cognitive psychology, neuroscience, development theory and political philosophy to contest assumptions that underpin constitutional doctrines and to offer fresh, productive perspectives and possibilities with which to comprehend and develop constitutionalism in South Africa.