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- Volume 21, Issue 1, 2010
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 21, Issue 1, 2010
Volume 21, Issue 1, 2010
Author Geo QuinotSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21 (2010)More Less
This edition marks a change in the editorial team. Jacques du Plessis's three year term as editor came to an end in December 2009, which also saw his departure from the editorial team after having served the Stellenbosch Law Review for twelve years. We wish to thank Jacques for his excellent contribution over the past years and in particular during the last three years as editor.
Author T.W. BennettSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 4 –25 (2010)More Less
This article concerns two similar legal phenomena in South Africa: the merging of African customary and common law, on the one hand, and the merging of Roman-Dutch and English law, on the other. Due to the famous bellum juridicum of the last century, the latter interaction is already the subject of detailed study. One might therefore assume that we have something to learn about the prospects of integrating customary and common law. Despite the similarities of subject matter, however, no one has systematically compared the interaction between customary and common law (which produced a so-called "official" customary law) and Roman-Dutch and English law (which produced South African "common" law).
Verryking van die eienaar by nie-uitoefening van habitatio en versorgingsverpligtinge jeens eie ouer as bewoningsreghebbendeAuthor J.C. SonnekusSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 26 –44 (2010)More Less
The default position is that a limited real right of habitatio lapses with the death of the holder of the right. This personal servitude is not transferable and the real right cannot be transferred to a third party (or the owner). This position is not affected by the fact that the holder of the limited real right is compelled by his frailty (due to old age) to vacate the dwelling and move to a frail care centre.
In this contribution the possible enrichment of the owner is considered where he enjoys the benefit of the dwelling being vacated earlier by the holder of the habitatio, especially if he lets it to a third party for his own account or merely utilises the space. Should the owner happen to be a child of the frail senior citizen who is compelled to foot the bill of the exuberant costs involved in his stay in the frail care centre, it is submitted that the owner might be liable for the maintenance of the parent. This liability can be based in the first place on a child's duty to support his parents. It may also in the second place be based on the unjustified enrichment enjoyed by the owner of the property that is burdened with the limited real right.
Author Verine EtsebethSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 45 –66 (2010)More Less
The discussion contained in this article considers the extent to which tax authorities may be held liable for the disclosure of a taxpayer's confidential information to foreign tax authorities, individuals or organisations that are not authorised to view it. The article considers this unauthorised disclosure within the context of the international exchange of tax information that currently takes place on a daily basis. It is recommended that, in order to limit their potential liability, tax authorities will have to conduct a two-fold investigation into: firstly, their own information security practices relating to the security measures they have in place when transferring tax information across borders. Secondly, they will have to evaluate the information security practices of requesting states. The author argues that a specific tax authority's obligation to protect the privacy and confidentiality of its taxpayers do not end as soon as the exchange process is completed, but rather continues until the moment that the relevant taxpayer's information is finally destroyed.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 67 –89 (2010)More Less
In Friedman v Glicksman 1996 1 SA 1134 (W) the claim for wrongful life was denied. Eleven years later the Cape High Court again denied the existence of the claim in Stewart v Botha 2007 6 SA 247 (C); 2007 9 BCLR 1012; 2007 3 All SA 440 albeit for different reasons than those used by the Court in Friedman. The Supreme Court of Appeal had the opportunity to provide well-reasoned answers to the many questions resulting from the two conflicting decisions and to finally put to rest the matter of whether the action should be recognised in South African law or not. Unfortunately it failed to do so. This article discusses the recent South African and international case law which considered the action, placing emphasis on the policy issues underlying the claim. In light of the constitutional dispensation and the promulgation of the Children's Act 38 of 2005, it is argued that the opportunity now exists to reconcile the principles of delict with the constitutionally enshrined rights of the child to ensure that the best interests of the child are served.
Author Jaap De VisserSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 90 –115 (2010)More Less
This article attempted to clarify the role played by section 156(4) of the Constitution by tracing some of the origins and manifestations of the principle of subsidiarity, on which this provision is modelled. It was argued that, although modelled on it, section 156(4) is different from the classic manifestation of subsidiarity, which would have established a principled and automatic bias for local government that only gives way to a reasoned argument in favour of other spheres of government. Section 156(4) works the other way around. It establishes a preference and not an automatic bias for local government. This preference must be substantiated with an argument that the assignment of the power to local government is functional in that it enables such government to achieve its developmental objects. It was further argued that section 156(4) of the Constitution may not be easily enforced separately by the courts, in part because of the deference shown by the courts to political decisions surrounding the configuration of the state. However, the experience of judicial enforcement of the subsidiarity principle in Germany may offer some guidance in this respect. The principle of subsidiarity should play a guiding role in lawmaking and the interpretation of competencies by the courts. A brief review of legislation and court judgments surrounding, for example, local government's role in land use management, indicates that the principle is not given nearly the recognition it deserves.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 116 –131 (2010)More Less
It was decided in the De Beers v Ataqua Mining (Pty) Ltd that ''tailings dumps'' created by mining companies before the Mineral and Petroleum Resources Development Act, 28 of 2002 ("the MPRDA") came into operation are not governed by its provisions because such dumps are not "residue stockpiles" or "residue deposits" for purposes of the MPRDA. Ownership of tailings dumps is determined by the common law principles of accession. Ownership of a movable dump has to be transferred by one of the recognised forms of delivery of movables. Processing of these dumps will, however, still be subject to compliance with South African environmental, health and safety laws in general. It is submitted that mine dumps or tailings dumps created upon the exercise of "old order mining rights" before the commencement of the MPRDA and even after commencement of the MPRDA until eventual termination of the "old order mining rights" are not subject to the extensive, mining, environmental, empowerment provisions of the MPRDA. Termination of "old order mining rights" takes place upon: (i) refusal of an application for conversion of a mining right during (or even after) the period of transition, (ii) conversion into and registration of new order mining rights during (or even after) the period of transition or (iii) termination of unconverted "old order mining rights" on 30 April 2009. To the extent that this decision has made it possible to embark on a shorter and less cumbersome route in the reprocessing and eventual disappearance of most tailings dumps, it is to be welcomed from an economical, environmental, job creation and aesthetic perspective. Proposed amendments to the MPRDA to undo the impact of the De Beers decision should be carefully considered against these mentioned benefits and a possible finding that it may amount to an expropriation without compensation.
Arresting a foreign peregrines : Bid Industrial Holdings (Pty) Ltd v strang and a new jurisdictional lacunaAuthor C. TheophilopoulosSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 132 –157 (2010)More Less
In Bid Industrial Holdings (Pty) Ltd v strang, the SCA declared the arrest procedure whereby an incola plaintiff may found or confirm jurisdiction over a defendant foreign peregrinus to be an unjustifiable infringement of the peregrine's constitutional rights. The effect of the decision is to render unconstitutional the portions of subparagraph (c) (i) and (ii) of section 19(1) of the Supreme Court Act which refers to the arrest of a peregrine, thereby recreating a jurisdictional lacuna which the original insertion of section 19(1)(c) into the Supreme Court Act had sought to plug. According to the SCA, a constitutionally justifiable alternative to arrest could be found in the English procedure of asserting jurisdiction by the mere service of summons on a foreign defendant who is physically present within an English court's territorial boundaries. This method of asserting jurisdiction over a foreign defendant is common to most adversarial systems and is familiarly labelled in the USA as transient or tag jurisdiction. The purpose of this article is to critically evaluate the nature of transient jurisdiction as it is currently practised in England and the USA, in order to determine its suitability as a new South African ground of jurisdiction. In addition, the article examines the doctrine of minimum contacts which is a unique USA procedure for founding jurisdiction against alien non residents. The minimum contacts doctrine is constitutionally tested, based on the Due Process clause of the Fourteenth Amendment of the USA Constitution, and may represent a model well suited to South African civil procedure. As South Africa embarks on its own constitutional re-evaluation of the common law principles of jurisdiction some relevant value may be found in the United States experience.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 158 –171 (2010)More Less
The contribution explains some of the implications of the systemic changes to South African mineral law, by analysing the decision in AgriSA v Minister of Minerals and Energy. It commences by explaining the tenets of the transitional order, and focusing specifically on one of the various categories of transitional rights that were created, namely "unused old order rights". In case of unused old order right, the holder had one year in which to apply for a new right.
The article then considers the facts of the case under discussion: The plaintiffs alleged that their unused old order rights, which were terminated after the transitional period, were expropriated when the MPRDA came into operation. The defendant entered an exception to the plaintiffs' particulars of claim on the basis that (i) the provisions of the MPRDA relied upon do not provide for expropriation and (ii) that the particulars of claim are vague and embarrassing as insufficient facts have been alleged to appraise the defendant of exactly what the plaintiffs claims are. The issue was thus not whether there was an expropriation but whether the provisions of the MPRDA relied upon provide for expropriation.
A critique on the OECD campaign against tax havens : has it been successful? A South African perspectiveAuthor Annet Wanyana OguttuSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 172 –200 (2010)More Less
The globalisation of trade and integration of national economies has made many segments of national tax bases increasingly geographically mobile. These developments have induced some jurisdiction, such as tax haven jurisdictions to adopt tax regimes that distort financial and investment flows among countries resulting in the erosion of other countries' tax bases. Over the years, the OECD has been at the forefront of the campaign against the harmful tax practices of tax haven jurisdictions. In this regard, it has recommended certain legislation and policies that countries should adopt so as to stifle the development of tax havens. The OECD's efforts have however been heavily criticised and it is doubtful if its initiatives pose a threat to the existence of tax havens. Nevertheless, the OECD's initiatives have made it clear that the international community will not tolerate tax-haven harmful tax practices that deplete countries' tax bases. Indeed the threats and sanctions imposed on tax-haven jurisdictions have forced a number of them to amend their tax policies. Like other countries, South Africa's tax base gets depleted when its residents invest in tax haven jurisdictions. This article evaluates to what extent South Africa has aligned itself with the OECD recommendations in fighting the tax haven problem, and comes up with recommendations for more proactive measures.
Author D.M. PretoriusSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 201 –204 (2010)More Less
According to its preface, this very useful work by Professor Burns (assisted by her co-authors, Professor Margaret Beukes and Ms Thea Illsley) sets out to achieve two objectives: first, to provide laypersons such as media students, journalists, broadcasters and Internet subscribers with a workable frame of reference to assist them in understanding the implications of the right to freedom of expression; and, secondly, to assist legal practitioners in understanding the scope and content of that right.
Erfreg 4 uitg (ook beskikbaar in Engels onder die titel Law of Succession 4 ed), M.J. de Waal en M.C. Schoeman-Malan : boekresensieAuthor Francois Du ToitSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 204 –206 (2010)More Less
Die eerste uitgawe van De Waal en Schoeman-Malan se werk oor die Suid-Afrikaanse erfreg het in 1992 die lig gesien onder die titel Erfreg: Studentehandboek (met NJ Wiechers as derde outeur). Dié werk was in die eerste plek bedoel as handboek vir universiteitstudente in die erfreg en is in 1996 gevolg deur 'n tweede uitgawe onder dieselfde titel. Die derde uitgawe het in 2003 onder 'n nuwe titel, naamlik Inleiding tot die Erfreg, verskyn. Die teikenmark was steeds erfregstudente, maar die derde uitgawe het, wat voorkoms en inhoud betref, 'n meer professionele inslag getoon wat ook by regspraktisyns aanklank gevind het. Die vierde uitgawe, weer eens onder 'n nuwe titel, naamlik Erfreg, bou voort op die standaard deur die derde uitgawe gestel en, alhoewel steeds primêr bedoel as 'n werk vir gebruik deur studente, slaag die vierde uitgawe daarin om die boek as 'n basiese algemene werk oor die Suid-Afrikaanse erfreg te vestig.
Labour Dispute Resolution, 2 ed, John Brand, Casper Lotter, Felicity Steadman and Tembeka Ngcukaitobi : book reviewAuthor Karin CalitzSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 206 –207 (2010)More Less
Labour Dispute Resolution was first published in 1997 and has since then been a useful guide to employers and employees and their representatives, as well as legal practitioners, trade unionists, academics and students.
The authors state that they hope that readers will find more than a guide on "how to do this" but also an understanding of the nature of labour disputes. They believe that "the aim should not be to eliminate conflict but to manage it by using theory and practice derived from the best that has been thought and said, internationally, about dispute resolution."
Mckenzie's Law of Building and Engineering Contracts and Arbitration, 6 ed, P.A. Ramsden : book reviewAuthor J.A.L. BeyersSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 207 –210 (2010)More Less
To professionals in the built environment McKenzie's Law of Building and Engineering Contracts and Arbitration needs no introduction.
When first published in 1966, it constituted the first South African text book exclusively devoted to the building contract, and it has established itself as a leading reference work since.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 211 –217 (2010)More Less