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- Volume 19, Issue 3, 2008
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 19, Issue 3, 2008
Volume 19, Issue 3, 2008
Author A.J. Van der WaltSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 325 –346 (2008)More Less
The article examines the ability of property to advance social justice, promote citizenship and build sustainable and supportive communities, particularly in post-apartheid South Africa. Under the apartheid system property law was one of the mechanisms that undermined social justice and citizenship, but the 1996 Constitution requires that the law be developed in a way that would promote the constitutional goals of freedom, equality and human dignity. The article investigates three recent examples from legislation and case law, two from private law and one from land reform, in which the law arguably was or could have been developed so as to reverse the legacy of apartheid and promote social justice and citizenship, in line with the transformative goals of the Constitution. The examples involve judicial scrutiny of attachment and sale in execution of residential property; compensation for improvements to immovable property made by a lessee without the permission of the landlord; and the establishment of graves and burial sites on agricultural land without the permission of the landowner. The conclusion points out that these examples demonstrate wide-ranging possibilities for context-sensitive and constitution-conscious development of existing law that can create space for the advancement of social justice and the promotion of citizenship and community, even in what might initially appear to be politically neutral and narrow doctrinal disputes.
Author S.S. TerblancheSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 347 –373 (2008)More Less
One of the recommendations in a report by the South African Law Reform Commission on reform of sentencing (2000) was that the method of determination of the amount of fines, as a form of sentence for criminal activities, be reconsidered. In particular, it was recommended that a day fine system be considered. Day fine systems are known to link the amount of the fine more directly to the means of offenders than the fixed sum system currently employed in South Africa. However, the practical operation of a day fine system is largely unknown outside those countries where it is employed. Such countries include some of the Scandinavian countries, as well as Germany, the system which is the focus of this article. A day fine system typically involves two separate sentencing actions. The first action amounts to determining the number of penalty units, based mainly on the seriousness of the crime. In German law a daily tariff serves as the penalty unit, and from five to 360 daily tariffs may be imposed. The value of the tariff is determined by the average daily net income of the offender. This may range from 1 tot 5 000. The amount of the fine is calculated by multiplying the number of daily tariffs with the amount of a tariff. Determining the net income of the offender is one of the biggest practical problems of the scheme. Payment of fines is enforced by the prosecution service. The article concludes that the imposition and enforcement of fines in German law are very successful. Not only are fines imposed for between 80 and 85% of all crimes committed in Germany, but 90% of the fines are eventually collected.
Bent out of shape? : critically assessing the application of the right to fair labour practices in developing South African labour lawAuthor Craig BoschSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 374 –389 (2008)More Less
This article examines instances in recent South African case law where the constitutional right to fair labour practices has featured and assesses the role that it has played in those cases. The article discusses the challenge to the Labour Relations Act (LRA) based on its alleged failure to give effect to an employer's right to fair labour practices as well as examining the extent to which that right might be relied upon directly to provide employers with constitutional remedies. The courts' reliance on the right to fair labour practices in developing the common law and interpreting the LRA is also critically discussed.
Ensuring contractual fairness in consumer contracts after Barkhuizen v Napier 2007 5 SA 323 (CC) - part 1Author P.J. SutherlandSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 390 –414 (2008)More Less
Barkhuizen v Napier 2007 5 SA 323 (CC) has important implications for insurance law, contract law in general, and an understanding of the interface between private common law and the Bill of Rights. In this matter an insurance policy determined that a claim against the insurer would lapse if the insured failed to serve summons on the insurer within 90 days of being notified of the insurer's repudiation of the claim. The insured argued that this provision conflicted with the constitutional right of access to the courts set out in section 34 of the Bill of Rights
The majority of the Constitutional Court, per Ngcobo J, considered the application of the Constitution of the Republic of South Africa, 1996 in private relationships. He eschewed direct application of the Bill of Rights to the contractual provision, but preferred to apply it indirectly via the contract law concept of public policy. He considered the meaning of this form of public policy in the light of the Constitution, determined the manner in which the section 34 right as an expression of public policy applied to this contract and related this to broader contractual fairness. Part I of this article focuses on these aspects.
The majority further considered the significance of the sanctity of contract under the Constitution and decided that it could only uphold the time-limitation clause if it was fair. Its test for determining fairness was derived from cases that determined whether statutory provisions were inconsistent with section 34. The majority upheld the clause on the basis that there was insufficient evidence to show that the provision was unreasonable or that it would be unreasonable to enforce it in the circumstances. Part II, which is to be published in 2009 (1) Stellenbosch Law Review, is dedicated to an analysis of these issues.
The majority judgment is analyzed with reference to the trenchant criticism in the minority judgments of Sachs J and Moseneke DCJ, delivered in the same court, as well as the earlier judgments of the Transvaal Provincial Decision and Supreme Court of Appeal. Ultimately the majority judgment in the Constitutional Court is criticized for being too timid and in some respects unsystematic. However, the final conclusion is positive. These judgments can serve as a springboard for the development of a progressive contract law, built on the values and rights set out in the Constitution.
The right of access to adequate water [discussion of Mazibuko v the City of Johannesburg case no 13865/06]Author Linda Jansen van RensburgSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 415 –435 (2008)More Less
The Constitution of the Republic of South Africa, 1996 guarantees everyone the right to access to adequate water and places an obligation on the state to take reasonable measures, within its available resources, to achieve the progressive realisation of this right. This discussion focuses on the possible implications of the recent High Court case of Mazibuko v The City of Johannesburg case no 13865/06 for socio-economic jurisprudence in South Africa.
Author Akalemwa NgendaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 436 –451 (2008)More Less
The Marriage Act 25 of 1961, the Divorce Act 70 of 1979, and the dissolution of a Hindu marriage [discussion of Singh v Ramparsad 2007 3 SA 445 (D)]Author Jacqueline HeatonSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 452 –465 (2008)More Less
In Singh v Ramparsad 2007 3 SA 445 (D) the court was asked to find that a Hindu marriage falls within the ambit of the Marriage Act 25 of 1961 or, alternatively, within the ambit of the Divorce Act 70 of 1979. The purpose of the claim was to enable the plaintiff to have her Hindu marriage dissolved by divorce. Hindu law does not permit divorce. Thus, the plaintiff could not obtain a divorce in terms of Hindu law. The court refused to grant the relief the plaintiff sought. It is submitted that the outcome of the decision is correct although the rationes decidendi are incomplete in some respects and wrong in others. In essence, the relief the plaintiff sought amounted to a request to convert her Hindu marriage into a civil marriage or to impose divorce on Hindu spouses. It is submitted that the court does not have the power to convert a Hindu marriage that has not been solemnised in terms of the Marriage Act into a civil marriage by declaring that it falls within the ambit of the Marriage Act. It is further explained that it would have been futile for the court to declare the plaintiff's Hindu marriage to fall within the ambit of the Divorce Act unless the court also imposed divorce on all Hindu spouses. It is submitted that it is impermissible for the court to impose divorce on Hindu spouses.
Author Narnia Bohler-MullerSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 466 –482 (2008)More Less
In this contribution I take a closer look at the interrelationship between law, memory, reconciliation and repair after the Truth and Reconciliation Commission (TRC). The premise to be explored is that institutional memorialisation - and universal attempts at constructing a renewed and reconciled polity - as endorsed by truth and reconciliation "rainbow nation" triumphalists, tends to exclude or silence counter-narratives that reflect the reality of the continued suffering of the "unreconciled". The aim is not to discourage altogether efforts at reconciliation, forgiveness and healing but to critically interrogate the institutionalisation of these processes. Tshepo Madlingozi's figure of the "bad victim" is used to illustrate how counter-narratives, such as those of Winnie Madikizela Mandela and members of the Khulumani Support Group, are able to draw our attention to the (im)possibility of final and complete reconciliation. In particular, I concentrate on Khulumani's reparations litigation in the United States of America (litigation that is strongly opposed by the South African government) as an example of an attempt to rescue pain and suffering from forgetfulness. Ultimately, against forgetting, I seek to explore the need for an ongoing process of memory, repair and reconciliation - and the remembrance of evil - that begins again with the break of every dawn, for reconciliation always remains to come.
Author Susan ScottSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 483 –494 (2008)More Less
This note reconsiders the validity and effect of agreements prohibiting cession. The current legal position in South Africa, as set out in Capespan (Pty) Ltd v Any Name 451 (Pty) Ltd 2008 4 SA 510 (C), is evaluated in light of an analysis of international and European sources. Personal rights as assets in an estate enjoy increasing importance in global commerce, and the demands of commerce necessitate free and effective transfer of these rights. However, in striving to satisfy the demands of commerce and the interests of the creditor, the debtor's interests cannot be ignored. The current legal position is thus considered in light of all parties' positions. It is concluded that although agreements prohibiting cession should be valid in terms of the principle of freedom of contract, such agreements should only have an effect inter partes. In exceptional cases, the interests of the debtor may render an agreement prohibiting cession effective against third parties as well. The suggested reform diverges drastically from the current legal position, and thus a plea is made for the codification of the law of cession.
Foundational Principles of South African Medical Law, Pieter Carstens and Debbie Pearmain : book reviewAuthor Andra Le Roux-KempSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 495 –497 (2008)More Less
The book attempts to provide the reader with an all-inclusive and detailed report on the basic principles underpinning medical law in South Africa. It discusses a diverse range of topics as well as the interesting dynamic between the general field of medical law and the Constitution.
Principles of Financial Law, Carl Wille (principal author); Solly Keetse; Joubert Matthee; Juanita Moolman; Pheona Muwanula : book reviewAuthor Charnelle Van der BijlSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 497 –498 (2008)More Less
Principles of Financial Law is user-friendly and was written with the aim of consolidating complex and interrelated legal principles pertaining to financial institutions and financial services providers. It examines key topics relating to integrated financial services and products.
Author Lize MillsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 19, pp 498 –500 (2008)More Less
The relevant provisions of the Act are cited verbatim, but printed in a different font from the commentary; and in most instances the date of coming into operation of the relevant section is also stated. For purposes of ease of reference, the section numbers are repeated at the top right corner of each page. Almost every section of this Act receives individual attention and an explanation is given by authors who are regarded as experts in their respective fields.