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- Volume 19, Issue 2, 2008
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 19, Issue 2, 2008
Volume 19, Issue 2, 2008
A European law on unjustified enrichment? A critical view of the law of restitution in the Draft Common Frame of ReferenceAuthor Jan M. SmitsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 179 –188 (2008)More Less
This contribution discusses the European principles on unjustified enrichment as recently published in the Draft Common Frame of Reference (CFR). These principles (or rather : model rules) were drafted with a view to the improvement and elaboration of the present European acquis in the field of private law. This contribution considers not so much the substantive details of the new model rules, but more the need for, and the function of, drafting principles in this area of the law. This is a legitimate approach, as the law of restitution is traditionally not a core area of European legislative intervention. The private law acquis rarely contains rules about restitutionary claims and their consequences.
Author Stella VettoriSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 189 –208 (2008)More Less
The purpose of this article is to demonstrate that section 186(1)(b) of the Labour Relations Act makes no changes to the common law with regard to factors or circumstances that give rise to a right to renewal of a fixed term contract of employment. The reason for this is that what an aggrieved fixed term employee needs to prove in order to have his or her contract renewed (usually for an indefinite period), irrespective of whether the claim is based on common law or legislation, is essentially the same. The outcome is always determined by an application of the principles of fairness or reasonableness. A subjective belief or expectation, based on an objectively reasonable interpretation of the state of affairs in the light of the conduct of the employer in the surrounding circumstances, gives rise to a right of renewal in terms of both the common law and in terms of section 186(1)(b) of the Labour Relations Act. Secondly, the purpose of this article is to demonstrate that a claim for renewal of a fixed term contract on a permanent basis should be possible in terms of the Labour Relations Act if this would be fair and reasonable in the surrounding circumstances.
Author D.L. Carey MillerSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 209 –230 (2008)More Less
Within the general category of "mixed systems" a special affinity exists between the laws of Scotland, Sri Lanka and South Africa. This relationship will be considered by commenting first, in Part Two, on the general position, followed, in Part Three, by a particular case study of positive prescription applicable to land. The mixed civil / common law systems of South Africa and Scotland having been studied in recent projects, Part Two will pay most attention to the Sri Lankan system. This approach will continue in Part Three, with the focus on Sri Lanka and only brief comment on the Scottish and South African systems of prescription which have been analysed, explained and compared in recent expert literature.
Creating and controlling private land use restrictions in Scotland and Louisiana : a comparative mixed jurisdiction analysisAuthor John A. LovettSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 231 –258 (2008)More Less
Property law systems in many developed nations around the world today face two common dilemmas. First, should property owners be permitted to establish by contractual agreement land use restrictions and affirmative obligations that bind future owners of the affected land? If this question is answered in the affirmative, then legal systems must decide what limits, if any, should be imposed on these powerful property arrangements. In recent years, scholars from across Europe have begun to address how Europe's legal systems confront these fundamental property problems in the hope of discerning whether there is a basis for possible harmonization of their property law regimes. Scholars in the United States have been debating these same issues since the early 1980's, when preliminary work began on the preparation of the Restatement (Third) of Property : Servitudes.
Author Gerrit PienaarSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 259 –277 (2008)More Less
The nature of land tenure rights is defined in many different ways in different jurisdictions. One of the basic differences lies in the extent of exclusivity or inclusivity of land tenure, or what is called a "discourse of exclusion". Another lies in the distinction between the "idea of property", premised by individualism, and the "institution of property", preoccupied with compromise, relationality and the tension between individual and community.
The purpose of this article is to compare the inclusivity or exclusivity of property in South Africa, where the law is predominantly civilian in nature, with Canada, a predominantly common law jurisdiction. In both jurisdictions communal land tenure has been incorporated in their property systems of predominantly civil law and common law respectively. Canada was chosen for this comparison because of the remarkable similarity that, in both jurisdictions, it required three different decisions by three different courts before the matter was finally settled, namely the Delgamuukw decisions in Canada and the Richtersveld cases in South Africa.
Author Andrew J.M. StevenSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 278 –297 (2008)More Less
The right of a landlord to recover the rent by recourse to the goods on the leased premises, with a preference over the tenant's other creditors, is recognised in many countries. In civilian and mixed systems it is based on the tacit hypothec of Roman law. In common law systems its equivalent is distress for rent, but there was probably some Roman influence here, too. The article considers why some countries have entirely abolished or partially restricted the landlord's right. It focuses also on a remarkable feature of the right : its ability to cover goods which belong to third parties. The proffered justifications for this are set out and criticised. This is followed by an assessment of whether the application to third party goods breaches human rights laws. The article concludes by considering whether the modern landlord deserves any sort of preferential right.
The adaptation of the institution of apartment ownership to civilian property law structures in the mixed jurisdictions of South Africa, Sri Lanka and LouisianaAuthor C.G. Van der MerweSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 298 –313 (2008)More Less
This study investigates the reformulation of the concept "ownership" in three mixed jurisdictions, in order to accommodate and legitimize the institution of apartment ownership in legal systems where the maxim superficies solo cedit militated against the possibility of separate ownership. Social and legal policy considerations compelled South Africa, Sri Lanka, and Louisiana to promulgate statutes, based on common law legislation and accompanied by "alien" terminology, to regulate apartment ownership. The mixed jurisdictions concerned were confronted with the difficult task of clearing these newly imported laws of inappropriate vocabulary. Moreover, they had to incorporate the novel institution of apartment ownership into a civilian property law structure, which law is generally regarded as an unassailable domain of civilian jurisprudence in mixed legal systems. This study thus aims to illustrate how the civilian concepts of accession, ownership and co-ownership, and the law relating to voluntary associations, have been transformed, qualified and / or adapted to accommodate the novel institution of apartment ownership.
Author Francois Du ToitSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 314 –315 (2008)More Less
The trust, given its almost chameleon-like adaptability, remains a popular tool in legal and commercial practice. However, the trust's operational intricacies are frequently misunderstood by trust founders, trustees and trust beneficiaries alike, whilst its inherent flexibility and relative ease of use often cajole legal and financial advisors into inappropriately suggesting it as a cure for an array of legal and / or financial maladies.
Author Sonia HumanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 315 –317 (2008)More Less
In 1993 het ID Schäfer se The Law of Access to Children die lig gesien. Dit was die eerste werk van sy soort wat 'n regsvergelykende perspektief op toegang in die Suid-Afrikaanse en Engelse reg gebied het. Schäfer het met daardie publikasie veral om twee redes nuwe grond betree. Eerstens het hy in sy boek daarop gewys dat toegang ook 'n sosiologiese onderbou het, iets wat maklik uit die oog verloor word deur diegene met 'n regsagtergrond.
Author Barbara E. LootsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 317 –319 (2008)More Less
As a respected practitioner and writer in the field of labour law, with publications such as Workplace Law (2007) and Collective Labour Law (2007) to his name, any academic work from Grogan's pen is received with high expectations.
The 2007 second edition of Dismissal, Discrimination and Unfair Labour Practices, which complements Grogan's Collective Labour Law (2007), offers the reader a comprehensive look at the individual employment relationship in a similar fashion as its 2005 predecessor.
Author Stephen De la HarpeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 319 –321 (2008)More Less
Public or Government Procurement (which is, generally speaking, the process by which government procures, from private enterprise, the goods and services it needs to fulfill its functions) is an important field of the law. In the past, it has not received its fair share of academic attention in South Africa. This drought has certainly been broken by this book by Phoebe Bolton. It is the first book which comprehensively and authoritatively deals with the South African law of public procurement.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 19 (2008)More Less