- A-Z Publications
- Stellenbosch Law Review = Stellenbosch Regstydskrif
- Previous Issues
- Volume 21, Issue 2, 2010
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 21, Issue 2, 2010
Volume 21, Issue 2, 2010
Author J.Y. MokgoroSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 221 –229 (2010)More Less
A recent report by the United Nations Development Programme (UNDP) estimates that nearly one billion people worldwide are migrants. Of these, 214 million are international migrants. South Africa, the leading economy in Sub-Saharan Africa and known for its political stability, attracts a larger proportion of foreign migrants than the global average. Currently, the UNDP estimates that there are nearly 1.5 million foreign migrants in our country. Although there are increasing numbers of people in search of asylum, the majority of foreign migrants are looking for employment. Most foreign migrants entering South Africa are from the Southern African Development Community (SADC) countries, in particular Mozambique, Lesotho and Zimbabwe. The economic instability in neighbouring Zimbabwe has led to an increase of in the number of migrants from this country in recent years.
Author Rani PillaySource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 230 –238 (2010)More Less
Recent advances in medical science and technology have renewed debate relating to the attribution of human personhood and highlighted some of the definitional problems of the legal concept of "person". This article considers the origin and contemporary relevance of the born alive rule which provides the legal threshold for human personhood. It analyses the approach of the South African judiciary to human personhood, with particular emphasis on the born alive rule. It shows that the approach of the South African judiciary has been characterized by ambivalence and anxiety. The conclusion of the article is that for the law to become principled and contemporarily relevant, it is imperative that it respond with a re-articulation of the concept of human personhood. The modern rationale which is needed must take into account non-legal factors such as the prevailing state of medical science and technology.
Author P.R. MsauleSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 239 –264 (2010)More Less
This article examines the right to receive education in one's language of choice as guaranteed under section 29(2) of the Constitution. As a starting point the article briefly looks at the language clause in the Constitution. Section 6 of the Constitution provides that there are 11 official languages that must enjoy parity of esteem and for the elevation of the status of languages whose usage was "historically diminished". In the context of the language of education this suggests that these languages have to be granted the opportunity to be used as languages for education.
The right to receive education in one's language of choice is not absolute. Section 29(2) limits this right to instances where it is "reasonably practicable" to receive it. It has been established, however, that despite this limited constitutional guarantee, English is the de facto language of education. This has led to a conflict between the Afrikaans single medium schools, which wished to preserve the status quo, and the government, which argued that the status quo has the effect of excluding non-Afrikaans speakers from the educational realm. A number of court cases ensued as a result. In Head of Department: Mpumalanga Department of Education v Hoërskool Ermelo 2010 2 SA 415 (CC) the Constitutional Court seems to entrench the position that schools are bound to offer learners education in the latter's official language of choice where it is reasonably practicable. In doing so, however, government has a positive duty not to interfere with the rights of those already enjoying this right. The article also proposes measures that could be taken to ensure that this right is realisable.
"Local environmental governance" and the role of local government in realising Section 24 of the South African ConstitutionAuthor Anel Du PlessisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 265 –297 (2010)More Less
In South Africa, local government has been transformed in many respects since 1994. A total number of 283 municipalities now make up the local government sphere which is independent albeit inter-related in the bigger governmental structure. Local government's constitutional mandate centres mainly on the idea of "developmental local government". It is argued that as part of its developmental mandate local government is co-responsible for the realisation of the constitutional environmental right. Environmental governance is regarded as one of the mechanisms available to government by means of which to achieve this. It follows that local environmental governance should be one of the mechanisms available to local authorities in doing the same, albeit specifically at the local level. This article defines local environmental governance within the broader local government and local governance context. It is argued that in order for local environmental governance to contribute meaningfully to the realisation of the constitutional environmental right, it should be aligned with at least eight different and more concrete elements of the notion "to realise" or "to fulfil". This article concludes with a brief overview of how the "politics of pollution" and party politics may influence the objectives of local environmental governance.
Failed synallagmatic contracts : appraisal of the maxim "the party who has control and can insure against the loss should shoulder the risk"Author Aimite JorgeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 298 –320 (2010)More Less
The current position in South African law on enrichment situations arising from "failed agreements" is that "if you have received a performance in terms of a contract which subsequently fails for whatever reason, you give it back if you still have it; if you cannot give it back, you are absolved, unless you were culpable in relation to the loss". Daniel Visser, however, challenges this approach and proposes a new one in his recently published book, Unjustified Enrichment (2008). This article evaluates both this position and the newly suggested approach and it argues that in cases of failed synallagmatic contracts "the person who was able to take measure to avert the risk or minimise its impact, if it did happen, must shoulder the risk of loss". However, such a determination must consider the nature of the risk, whether "exogenous" or "endogenous", and the attitude of each party towards risk.
Author Luke KellySource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 321 –333 (2010)More Less
The Competition Amendment Act 1 of 2009 inserts section 73A into the Competition Act 89 of 1998. Although the Competition Amendment Act has been assented to by the President, it has at the time of writing not been brought into effect. Section 73A introduces criminal sanctions for infringements of section 4(1)(b) of the Competition Act by directors, or persons occupying positions of management authority within a firm. Section 4(1)(b) of the Act relates only to "hardcore" restrictions of competition by cartels, namely, price-fixing, collusive tendering and market sharing.
The introduction of criminal sanctions in South Africa for cartel offences follows the trend in other jurisdictions to criminalise cartel conduct. The United States and, more recently, the United Kingdom and Australia are examples of developed economies with criminal sanctions directed against individuals who are responsible for involving firms under their control in cartels. The introduction of criminal sanctions is based, in part, on recognition of how important competitive markets are in capitalist economies for the maximisation of consumer welfare and, in part, on the apparent inability of administrative fines to serve as an effective deterrent to cartelisation.
In this paper the author begins by addressing the normative question of whether criminal sanctions are appropriate in the context of competition law before moving on to a brief summary of the formulation and operation of the cartel offence in the United Kingdom. Finally, the author analyses section 73A in its present form by highlighting certain weaknesses inherent in its approach to criminalisation that may negatively impact on enforcement, as well as noting certain aspects of the section that may present difficulties for the authorities in securing convictions.
The development of the interface between law, medicine and psychiatry : medical and psychiatric malpractice in South AfricaAuthor Magdaleen SwanepoelSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 334 –357 (2010)More Less
Persons suffering from mental disorders in South Africa were among the most stigmatised, discriminated against, marginalised, disadvantaged and vulnerable members of society. Although much has been done in recent years to improve the status quo, it is evident that a great deal more needs to be done to improve the moral standing of and to achieve social justice for the patient with a mental disorder. It is only a few decades ago that South Africans were living and working in an oppressive and discriminatory system. Of all the medical specialisations, psychiatry (the most influenced by the prevailing social and political climate) was the most criticised by the international community. One of the central factors that contributed to these conditions is the failure of our society to recognise the rights of individuals with mental disorders as equal to those of able-bodied persons. However, with the advent of democracy in South Africa, the authority of the Constitution and Constitutional Court, the introduction of the Bill of Rights, the establishment of the Human Rights Commission and the enactment of the Mental Health Care Act an infrastructure has been created in South Africa. This infrastructure addresses past inequalities and attempts to ensure that the rights of all people, including patients with mental disorders, are protected. Until recently, lawsuits against psychiatrists were virtually unheard of. However, the traditional reluctance to litigate has crumbled, although not to its full potential in South Africa. Globally, there has been a steady rise in malpractice litigation against psychiatrists since the late 1960s. This article examines the development of law, medicine and psychiatry in South Africa and the progress made regarding medical and psychiatric malpractice.
Dignity, Freedom and the Post-Apartheid Legal Order : The Critical Jurisprudence of Laurie Ackermann, A.J. Barnard-Naudé, D. Cornell and F. du Bois (Eds.) : book reviewAuthor Henk BothaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 358 –363 (2010)More Less
This collection of essays had its origin in a conference that was held at the University of Cape Town in July 2007 to pay tribute to the constitutional jurisprudence of Laurie Ackermann. It contains the papers delivered at the conference, together with the Ben Beinart Memorial Lecture delivered by Jeremy Waldron a day earlier. Exploring, celebrating and critiquing key aspects of Justice Ackermann's contribution to the development of the Constitutional Court's jurisprudence, the volume manages to transcend the strictures of both the Festschrift and conference proceedings format and becomes an extensive reflection on the transformative potential of South Africa's Constitution and of constitutionalism in general.
Imperative Inheritance Law in a Late-Modern Society - Five Perspectives, C. Castelein, R. Foqué and A. Verbeke (Eds.) : book reviewAuthor Francois Du ToitSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 363 –366 (2010)More Less
The European Family Law series is dedicated to the harmonisation and unification of family and succession law in Europe. As such, this book series provides a rich source of legal-comparative and inter-disciplinary commentary on family and succession law within a European context. Imperative Inheritance Law in a Late-Modern Society is the latest addition to the series and stands firmly in the series's tradition of probing and innovative writing on its subject matter. The book's contributors are eminent scholars who provide diverse and cross-jurisdictional perspectives on the contentious topic of imperative inheritance law. The book is the product of a high-level international and multi-disciplinary seminar on imperative inheritance law held in 2007 at the Catholic University of Leuven, Belgium.
Herbstein and Van Winsen : The Civil Practice of the High Courts & Supreme Court of Appeal of South Africa, A.C. Cillliers, C. Loot & H.C. Nel : book reviewAuthor Wouter De VosSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 366 –370 (2010)More Less
The book under review, hereafter referred to as Herbstein and Van Winsen, needs no introduction. Since its first edition in 1954 Herbstein and Van Winsen has become one of the two most authoritative publications on the High Courts' civil practice, the other being Superior Court Practice by Erasmus, formerly Uniform Rules of Court by Nathan, Barnett & Brink. In brief, Herbstein and Van Winsen has become an indispensable book in the library of any legal practitioner practising in the High Courts.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 370 –372 (2010)More Less
This loose leaf publication follows in the footsteps of Lillian Chenwi's Evictions in South Africa: Relevant International and National Standards (2008), which also adopts a practice-orientated approach to the discussion of the law of evictions. These types of publications are gaining popularity among practitioners because they provide concise guidelines for the solution of a particular problem. This publication, however, exceeds the parameters of easy ascertainable pointers and ventures into the realms of a substantial academic work that is unfortunately crippled by slightly watered down theoretical discussions and case law analyses.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 373 –377 (2010)More Less