Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 20, Issue 1, January 2009

It is a privilege as it is an honour to be part of this well-regarded annual public lecture. My gratitude goes to the University of Stellenbosch, the Law Faculty and Professor Sandy Liebenberg who extended this kind invitation. I must add that I am delighted that a prominent law firm has seen it fit to be associated with this lecture series. This kind of collaboration underscores the salutary point that legal academics, law practitioners and the bench are joined at the proverbial hip in the search for justice. Their daily chores may appear to diverge and yet in essence they all are in common pursuit of legal truth. They are allies in the search for a just society under the rule of law.

Von Abo v Government of the RSA [2008] JOL 22219 (T) contains certain significant findings regarding the right to diplomatic protection and, more generally, the discretion of states in the conduct of foreign affairs. Although the court relied extensively on Kaunda v the President of the RSA 2005 4 SA 235 (CC), it reaches conclusions and gives an order that are apparently at odds with that judgement. This paper seeks to explore this paradox.

This discussion of Zuma v National Director of Public Prosecutions [2009] 1 All SA 54 (N) and National Director of Public Prosecutions v Zuma [2009] ZASCA 1 commences with a brief reconstruction of the judgment by Nicholson J and the critical response by Harms DP on appeal. After identifying the main legal and jurisprudential differences between the two judgments, it explores how history influenced the way in which the purpose of the review provision was defined in each judgment. A key question that arises from this exploration is whether section 39(2) of the Constitution should be understood as a means of compelling a process of historical contextualisation and abstraction of legal meaning, or rather as a means of restricting this process. The aim of the discussion is not to answer this question conclusively but rather to highlight the tension between openness and closure that it inevitably involves.

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

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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, which appeared in 2008 (3) Stellenbosch Law Review, focused on these aspects.

When two countries have entered into a double taxation agreement, the profits of an enterprise of a contracting state are taxable only in that state. The other contracting state cannot tax those profits unless the enterprise carries on business in that state through a permanent establishment (PE) situated therein. The existence of a PE in the form of a "fixed place of business" or a "dependent agent" presupposes the existence of a tax presence.

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The effective application of the PE concept, however, faces challenges when trade is conducted electronically. This is because with e-commerce, physical locations are not always required in foreign markets in order to engage in significant commercial activities. This article discusses the meaning of the PE concept, analyses the challenges e-commerce poses to this concept, and contains a recommendation for the effective taxation of income that electronic enterprises derive from foreign jurisdictions.

Insurers typically insert "other insurance" clauses in order to specify how their policies should interact with other policies covering the same risk. This enables insurers to avoid situations of double insurance and, consequently, claims for contribution by co-insurers. Although it is standard practice in the South African insurance industry to insert "other insurance" clauses into contracts, their functioning has been neglected in the legal literature. This article aims at increasing the understanding of these clauses through evaluating the decision of the Supreme Court of Appeal in Samancor v Mutual and Federal Insurance Co Ltd 2005 4 SA 40 (SCA).

When organs were first transplanted, the ethical correctness of transplanting a body-part from one person into another was questioned. Today no one questions the therapeutic value of transplantations, but the ethical issues surrounding organ transplantations have not disappeared and one of the main questions today is who of a number of terminally ill patients gets a donor organ. This question is extremely important given the constant world-wide shortage of transplantable human organs. Because there is an important connection between policies of organ procurement and policies of organ allocation, it is necessary to analyse why the distribution of donated organs is a problem. General considerations for allocating donor organs are discussed. Legislation in the United States of America and the United Kingdom is scrutinized to determine how decisions concerning donated organs are made there. A comparison of the position in those countries with the current position in South Africa reveals serious legislative short comings here. Finally, a possible solution is proposed. If there were more donors, the competition to get an organ for transplantation will diminish. By using unrelated living donors, especially for kidney donations, the problem might be solved.

The Mineral and Petroleum Resources Development Act 28 of 2002 has elicited controversy surrounding the ownership of unsevered minerals. This contribution discusses the opinions of various authors against the background of well-defined common law principles. The state's role as custodian and the Anglo-American concept of the public trust is also discussed. Finally, this contribution examines possible interpretations of section 3(1) of the Act and the effect that these possible interpretations would have on the ownership of severed and unsevered minerals.

This publication sets out in general and highly accessible form most of the relevant legal principles applicable to evictions in South Africa. It contains no lengthy theoretical discussions or hypotheses, detailed case analyses or tedious referencing to secondary legal materials. Instead, the book presents the applicable statutory enactments and core judgments in a concise and focused manner. As a result, this publication will be of significant assistance to anyone involved in the reality of evictions, including many of those facing evictions. The style and format of the book further facilitate its ease of use.

Christie discusses almost every practical issue of conveyancing, from the opening of a file right through to its finalisation. Every chapter emphasises the importance of the relevant provisions of the various Acts and, as far as possible, draws the reader's attention to the many pitfalls that may be encountered when dealing with a certain aspect of conveyancing.

Reinhard Zimmermann has produced yet another tour de force with this book on the reform of the German law of obligations. This reform of provisions in the German Civil Code ("the BGB") was implemented in 2002 by the Modernization of the Law of Obligations Act. In part, the reform was necessitated by the EC Consumer Sales directive of 1999, which, as a so-called minimum harmonization Directive, set minimum standards of protection for consumers throughout the member states of the European union. However, the German legislation also effected reforms to other parts of the Civil Code. The reform project actually predated the Consumer Sales Directive, as a commission had already proposed draft legislation in 1992.

South African Trust Law: Principles and Practice provides a concise, yet comprehensive, exposition of the principles underlying South African trust law. However, it also contains a very useful chapter on issues pertinent to putting the trust to legal and commercial use.

Legal publications received