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- Volume 20, Issue 2, 2009
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 20, Issue 2, 2009
Volume 20, Issue 2, 2009
Author Henk BothaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 171 –220 (2009)More Less
This article compares the role of human dignity in constitutional interpretation in Germany and South Africa. Both countries have embraced dignity as a direct response to a troubled and totalitarian past. Nowadays dignity features as a supreme value, an interpretive Leitmotiv, a justiciable right, an objective constitutional norm, and a guide to the resolution of value conflicts. There are, however, important differences in the way dignity has shaped these countries' constitutional jurisprudence. A study of the relevant similarities and differences provides an important occasion for critical reflection on the possibilities and limits of a dignity-based jurisprudence. The article concludes with tentative observations on the capacity of dignity to guide constitutional decision-making.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 221 –240 (2009)More Less
While the importance of combining paid employment with the need to provide care to others is becoming an internationally acknowledged workplace concern, the South African government - along with employers - has been slow to respond to the needs of employees as caregivers. This article focuses on the regulation of flexible working arrangements for the purpose of providing employees with time to care. It analyses the demands placed upon the South African employee-caregiver in balancing the obligations of work and care, the legislative framework that prohibits family responsibility discrimination, and the obligations imposed upon employers to accommodate employees with family responsibilities in a reasonable manner. The article then considers the reasons why the Employment Equity Act 55 of 1998 has been grossly underutilised and ineffective in advancing the right to flexible working conditions. By means of a comparative analysis of the Australian legal system, it is established that the obstacles encountered and consequent underutilisation of anti-discrimination legislation is not an exclusively South African phenomenon. Guided by international developments, the article argues for government initiatives to promote consultation between key participants in employment relations in South Africa over the right to request flexible working arrangements, given that the attainment of this right through family responsibility discrimination litigation has not been successful.
Author Bernard MartinSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 241 –257 (2009)More Less
The item of intellectual property referred to as a trade mark is the concept of trade origin embodied in, and expressed by means of, the distinguishing value of a symbol. A trade mark is thus a legal entity distinct from its principal constituent element, a symbol. A symbol, whether it is a word or device, functions semiotically by habitual association, and so does a trade mark constituted by using a symbol. South Africa has two semi-independent sub-systems of law in terms of which trade marks are created, namely the common law and the registration statute. Each sub-system, by drawing a conclusion, creates a trade mark. A common law and a registered trade mark, each the product of the respective sub-system which governs them, are separate legal entities. Identical common law and registered trade marks can, therefore, be created using the same symbol.
Transformative Constitutionalism and the best interpretation of the South African Constitution : distinction without a difference?Author Theunis RouxSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 258 –285 (2009)More Less
Written for a conference in celebration of the tenth anniversary of the publication of Karl Klare's article on "Legal Culture and Transformative Constitutionalism" 1998 SAJHR 146, this paper argues that Klare's article, while justly celebrated, defines the project of transformative constitutionalism in too exclusive a fashion. In particular, it unnecessarily requires, as a condition for participation in that project, the rejection of the liberal legalist distinction between law and politics in favour of a candid recognition of the politics of adjudication. Whatever the outcome of the decades-old dispute in Anglo-American legal theory over this question, the Constitution of the Republic of South Africa, 1996 clearly commits itself to a number of progressive political values. It is therefore not obvious why an interpretive method based on Ronald Dworkin's notion of putting the Constitution "in its best light" would not produce the progressive legal outcomes Klare advocates, while at the same time insulating the South African judiciary from the potentially legitimacy-threatening charge of political adjudication.
To the extent that Klare's article makes successful implementation of the project of transformative constitutionalism conditional on changing South Africa's traditionally formalist legal culture, the imposition of this condition, given that it is unlikely to be fulfilled in the short term, was (a) strategically unwise; and (b) wrongly premised on a circular argument about the preferred method of interpretation that the Constitution supposedly invites. Rather than being made to depend on a particular interpretive method, the project of transformative constitutionalism should be open to all participants, subject only to respect for the fundamental tenets of non-violent, democratic, law-driven social change.
Author Loretta A. FerisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 263 –264 (2009)More Less
This publication was initially intended to serve as the second edition of Environmental Law : a South African Guide. However, mindful of the speed at which environmental law evolves, the author decided instead to rename the book so as to reflect the vast changes in the field since the publication of the first book in 1997. The 1997 publication filled a large void as very little had been written about environmental law at the time. The 2008 publication is equally welcome as environmental law has greatly evolved, but legal writing in this area fails to keep up with the pace of that evolution. Unfortunately, this work does not reflect the true state of environmental law at the time of its publication and only reflects the law as of 31 December 2006.
Author Karin Van MarleSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 286 –301 (2009)More Less
This article reflects on the possibility of conceiving of the notion of transformative constitutionalism as a critical project. Three arguments raised in Karl Klare's 1998 article, "Legal Culture and Transformative Constitutionalism" 1998 SAJHR 146 are highlighted : the discussion of indeterminacy, or, as Klare phrases it, the tension between freedom and constraint ; the description of South African legal culture as conservative and the consequences this has for legal reform and development ; and the tentative reading of the South African Constitution as a "post-liberal" document. The author identifies two approaches, amongst others, to the notion of transformative constitutionalism, the one following a more instrumental/functional angle, the other a more critical one. She subscribes to the critical approach, and with reference to an article by Mbembe and Nuttall elaborates on the need for a critical approach to transformative constitutionalism, but also to law and legal theory in general. The metaphors of walking (following De Certau and Mbembe and Nuttall) and weaving (following Cavarero) are considered as ways to think about transformative constitutionalism. Hannah Arendt, and her insistence on thinking, is evoked to underscore the necessity of a critical and thoughtful engagement with the complexities of law, politics and the social within a transformative context.
Author Rita-Marie JansenSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 302 –332 (2009)More Less
This article discusses the legal and ethical implications of the off-label use of medication. "Offlabel" means that a drug is not used in the manner for which it has been registered and which is indicated in its labeling. This does not necessarily imply that using the drug in this way is ineffective, improper or unsafe. Off-label use represents a widespread and important part of legitimate and sometimes even essential clinical practice. However, the off-label use of medication obviously increases risks to both the patient and the medical practitioner, which necessitates caution. Examples of off-label use are provided and the South African regulatory framework is compared to that of the USA. Legal implications such as the circumstances in which the off-label use of medication will be negligent, as well as the matter of informed consent in regard to off-label use, are discussed. Finally, the article deals with the issue whether information about the off-label use of medication should be supplied to medical practitioners. In South Africa no guidelines on the off-label use of medication are supplied to medical practitioners, and it is concluded that it is imperative that they are provided with increased assistance and balanced, objective information. An amendment of current legislation is suggested.
"Equality" misplaced in the development of the customary law of succession : lessons from Shilubana v Nwamitwa 2009 2 SA 66 (CC)Author Nomthandazo NtlamaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 333 –356 (2009)More Less
This article analyses Shilubana v Nwamitwa 2009 2 SA 66 (CC) and the legal framework in which it was decided, and considers its implications for the future of the customary law of succession to chieftaincy in South Africa. It is argued that the characterisation of gender equality as irreconcilable with the values and principles of customary law undermines the very social change objectives that are entrenched in the Constitution.
Contract : General Principles, S. van der Merwe, L. van Huyssteen, G. Lubbe & M.F.B. Reinecke : book reviewAuthor Dale HutchisonSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 357 –359 (2009)More Less
When the first edition of this book appeared in 1993, there were already three major textbooks dealing with the general principles of the law of contract : the classic Kontraktereg en Handelsreg by De Wet & Van Wyk, in Afrikaans, and the well-established works in English by Christie and Kerr. The need for yet another book on contract law might not have been obvious, and yet in the intervening years the newcomer has made its influence felt to such an extent that it can now probably be regarded as the leading text on the subject in South Africa. In his foreword to the second edition (which appeared in 2003) Peet Nienaber, then recently retired as a member of the Supreme Court of Appeal, expressed the expectation that "more and more judges, practitioners and academics will begin to use the work as their first source of reference" (v). Judging by the many references to the book in the reported cases, and from my own observations in practice and in the academic world, this expectation would seem already to have been met. And that should come as no surprise, given the stature of the authors and the real need for a book in English expounding the principles of contract according to what might be called the "J C de Wet model".
Cooper's Motor Law : Criminal Liability, Administrative Adjudication and Medico-Legal Aspects 2 ed, Shannon V. Hoctor : book reviewSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 359 –360 (2009)More Less
Professor Shannon Hoctor, a criminal law expert with extensive publications on motor law and criminal liability (see eg Hoctor "Road Traffic Offences" in Milton, Cowling & Hoctor (eds) South African Criminal Law and Procedure III : Statutory Offences) 2 ed (1988); Hoctor "Road Rage and Reasoning about Responsibility" 2001 South African Journal of Criminal Justice 195; Hoctor "Dealing with Death on the Roads - S v Nyahti 2005 2 SACR 273 (SCA)" 2005 Obiter 429; Hoctor "What does 'Reasonable Consideration' mean in the Offence of Inconsiderate Driving? 2006 Obiter 146; Hoctor "Principles governing Sentence on a Charge of Driving under the Influence of Intoxicating Liquor or Drugs" 2006 Obiter 293; Hoctor "Sentencing Reckless or Negligent Driving" 2007 Obiter 111; Hoctor "Punishing the Failure to comply with Statutory Duties in the Event of an Accident" 2007 Obiter 331), has breathed new life into Cooper's Motor Law. With its predecessor published in 1982 (replacing the 1965 South African Motor Law) this edition is an eagerly awaited, essential guide to motor law in South Africa.
High Court Motion Procedure : a Practical Guide, M.M. Joffe, B. Neukricher, H.R. Fourie and L.C. Haupt : book reviewAuthor Charl HugoSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 360 –361 (2009)More Less
Motion-court work is the bread and butter of the practice of many advocates at the bar. Pressure is probably the main characteristic of this work. From the perspective of the presiding judge, the pressure arises from the fact that in busy courts the roll may well exceed 100 cases on any motion court day. Against this background, the court is entitled to expect that the advocates appearing before it in the motion court will have prepared properly - which implies that they will have scrutinised the documents with care, and will ensure that they know the law and practice relating to the application in question. This is the professional duty and responsibility of the advocate. From the advocate's perspective, however, he or she may also have several matters on the roll for a particular day, the briefs of some of which may actually only have been received on that day or a day before. Very often, the papers will also have been drafted by someone else so that the advocate concerned does not have knowledge of the particular case beforehand.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 362 –363 (2009)More Less
This book is a revised and updated version of Chris Todd's Contracts of Employment, first published in 2001. Like its predecessor, the book gives a simple and understandable exposition of the legislative constraints on the employment relationship, including in particular the Basic Conditions of Employment Act 75 of 1997 ("the BCEA"), which has been amended since the first publication of this book. The text reflects the legislation applicable as at February 2008.
Author Gerhard KempSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 365 –366 (2009)More Less
This looseleaf publication is presented as a "translation and an update of the sixth edition of the respected and authoritative Hiemstra Suid-Afrikaanse Strafprosesreg" (see author's note Service Issue 1). It contains a commentary (focusing on the Criminal Procedure Act 51 of 1977 ("the CPA")) as well as a useful table of cases and a subject matter index.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 366 –367 (2009)More Less
When Litigation Skills for South African Lawyers was first published in 2002, it was intended for use as a litigation skills guide for the practical training of aspirant advocates and attorneys at the law schools of the universities, the Practical Training Schools of the Association of Law Societies and the Advocacy Programmes of the Bar. However, it soon became apparent that this book is a best friend not only to the new and inexperienced, but also to seasoned litigators, prosecutors and even judicial officers of all ranks.
Author D.H. Van ZylSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 20, pp 368 –370 (2009)More Less
It is difficult to review a book written by a former student whom you have known and mentored for many years and who has become a good friend. It is even more difficult when he thanks you personally in his foreword to a magnum opus on a subject which has, over the years, been one of your own pet academic interests. However, when I was requested by the editor of this journal to review Professor Visser's book on unjustified enrichment, I accepted the mandate as an honour and privilege.