- A-Z Publications
- Stellenbosch Law Review = Stellenbosch Regstydskrif
- Previous Issues
- Volume 21, Issue 3, 2010
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 21, Issue 3, 2010
Volume 21, Issue 3, 2010
Pornography as sex discrimination? A critical reflection on the constitutional court's interpretation of gender politics, differentiation and (unfair) discriminationAuthor Letetia Van Der PollSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 381 –413 (2010)More Less
The advent of a constitutional democracy in South Africa after the first non-racial democratic elections in 1994 and the subsequent adoption of a final constitution in 1996 introduced a legal order based on "democratic values, social justice and fundamental rights". The first paragraph of the Preamble to the Interim Constitution expressed the "need to create a new order ... in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races that all citizens shall be able to exercise their fundamental rights and freedoms". The basic features of, and constitutional ideals expressed in, both these constitutions signal a radical and fundamental departure from, inter alia, a racially-qualified, sexist constitutional order and an oppressive system of censorship intended to impose the Calvinist Puritanism and political ideology of the ruling (white) minority on an entire society. Few would contest that the former constitutional order and its system of statutory censorship8 was hardly conceived in a spirit of liberty and democracy, or argue that it was premised upon a desire topromote equality between men and women.
Gap filling to address changed circumstances in contract law - when it comes to losses and gains, sharing is the fair solutionAuthor Andrew HutchisonSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 414 –428 (2010)More Less
The problem of changed circumstances arises when the factors on which contracting parties had based their consensus are fundamentally changed. This upsets the equilibrium of contractual exchange, since performance now becomes more onerous for one of the parties. The result will usually be a loss for one party and possibly even a windfall gain for the other. This issue of changed circumstances, or hardship, as it is often referred to, is dealt with by many leading Western legal systems. Countries such as Germany and the Netherlands deal with this problem in terms of their civil codes. English law has the doctrine of frustration, as does the US, although discharge is far more readily permitted in the latter jurisdiction. In the realm of international trade there are rules on hardship contained in the Unidroit Principles of International Commercial Contracts ("PICC"), as well as in the Principles of European Contract Law ("PECL") and the Draft Common Frame of Reference ("DCFR"). Comparative study thus reveals that this is a widely acknowledged problem and that leading legal systems address it with their own idiosyncratic rules.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 429 –437 (2010)More Less
Prior to the coming into operation of Chapter 19 of the Children's Act 38 of 2005 ("the Children's Act") on 1 April 2010, no legislation existed which expressly addressed or regulated the issue of surrogacy in South Africa. Although it was never explicitly prohibited, the basic philosophy apparently used to approach surrogacy was to test "the various issues against the prevailing boni mores". It appears that altruistic surrogacy was allowed but commercial surrogacy was regarded as contra bonos mores since surrogate motherhood was not considered to be an "ideal way ... to create a family", and the exchange of money for the adoption of a child was, and still is, prohibited. The reality was that infertile couples and surrogate mothers entered into both altruistic and commercial surrogacy agreements on a regular basis, mainly due to the many advantages surrogacy was seen to hold over the adoption procedure. The legal relationship between the parties involved remained one of uncertainty and, subsequent to an order by the North Gauteng High Court in 2009, confusion. This note aims to briefly explain the background to this order and to evaluate it in view of the legal position applicable at the time. It will furthermore discuss the possible implications of this order as well as the amendments to the law which came into effect with the commencement of Chapter 19 of the Children's Act. It is argued that these provisions and the certainty which they provide to the parties involved in a surrogacy relationship are much needed and long overdue.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 438 –462 (2010)More Less
The Unemployment Insurance Act 63 of 2001 ("UIA") and Unemployment Insurance Contributions Act 4 of 2002 ("UICA") are applicable to all employers and employees except for those specifically excluded. Unless specifically excluded, participation in the unemployment insurance scheme is compulsory. The UIA scope of coverage is narrow as it continues to exclude the atypically employed (particularly independent contractors, so-called dependent contractors and those who are self-employed or informally employed), public servants in the national and provincial spheres of government, learners, and certain categories of migrant workers from its purview. Given the vulnerable position of these groups, it is arguable that South Africa should, as a matter of principle, broaden the scope of coverage to include them. Furthermore, these exclusions may be susceptible to constitutional challenge in the context of the right to access to social security
Author Kelly Dawn SunkelSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 463 –478 (2010)More Less
The current approach to pacta de non cedendo in South African law is to be found in the leading case, Paiges v Van Ryn Gold Mine Estates Ltd ("Paiges") where the judgment relied heavily on the writings of Sande and Voet. Accordingly, the debtor has to show that he has an interest in the prohibition against cession and if he can do this, then the pactum de non cedendo is valid and binding. The personal right is consequently rendered non-transferable and a cession in contravention of the pactum de non cedendo is void. If the debtor cannot show that he has an interest, the cedent may validly cede the personal right and ownership thereof passes to the cessionary.
Author Wim AlbertsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 479 –488 (2010)More Less
Friction between statutory and common law intellectual property rights has existed since the advent of statutory protection of intellectual property; more particularly, the nature and scope of the relationship between such rights created by statute, and those protected by the common law, have been problematic. This state of affairs prevails notwithstanding the fact that legislation at times contains provisions aimed at delineating the relevant set of norms applicable.
A critical appraisal of the "dual purpose approach" in the interpretation of section 6(1) of the Trust Property Control Act 57 of 1988Author Pieter-Schalk BothmaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 489 –507 (2010)More Less
The Protected Disclosures Act 26 of 2000 : is this as good as it is going to get for whistleblowers? A review of some recent jurisprudenceAuthor Rochelle Le RouxSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 508 –527 (2010)More Less
After a slow start, the provisions of the Protected Disclosures Act 26 of 2000 ("PDA") are now used more regularly in litigation. For a long time the judgments in Grieve v Denel (Pty) Ltd and CWU v Mobile Telephone Network (Pty) Ltd were the only cases decided under the PDA, but more recently there has been an increase in the jurisprudence on this front.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 528 –541 (2010)More Less
The Children's Act 38 of 2005, additions in the Children's Amendment Act 41 of 2007 (collectively referred to as the "2005 Act") and two sets of regulations came into force on 1 April 2010. The new legislation is extensive in scope. It could almost be said that there is an entirely new system of child care and protection law to apply. The interpretation and implementation challenges for practitioners are certainly considerable. A noticeable feature of the 2005 Act is that similar or mutually relevant provisions sometimes appear in separate places, rather than all together. Although the Act might therefore be criticised for being user unfriendly, to some extent this was inevitable, given its size and ambit.
Author Mubarak SulaimanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 542 –544 (2010)More Less
The first edition of this book appeared in 1998. In the preface to that edition, which has not been reprinted in the second edition here under review, Elison Khan outlined the genesis of the book. In essence, the first edition was a revised, expanded and updated version of two chapters that would have formed part of a twenty-chapter publication entitled South African Commercial Law. The publication would have covered almost all aspects of the subject with each chapter "tightly written in such a way as to constitute multum in parvo - much in little space." When the venture did not get off the ground, the two chapters on the law of sale and the law of lease were published in the format of the first edition under the general title Principles of Commercial Law. Its publication was envisaged as constituting the first volume in a projected series on the topic. The first edition succeeds in encapsulating the motto of "much in little space".
Author Andre PelserSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 544 –545 (2010)More Less
As the title implies, articles is not for everyone. Many of us do not survive articles. Not because it is difficult, but because it involves a great deal of drudgery. This book brings this truth home. The first page already contains a schematic which displays the hierarchy in the firm, with the candidate attorney placed at the very bottom.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 545 –547 (2010)More Less
The coming into operation on 1 April 2010 of the entire Children's Act 38 of 2005, as amended by the Children's Amendment Act 41 of 2007, may be described as an event similar to child law in South Africa reaching majority. Following the slow birthing process with the drafting of section 28 of the Constitution, immunization with the ratification of the United Nations Convention on the Rights of the Child and the tumultuous teenage years during which the Review of the Child Care Act and the drafting and re-drafting of the Children's Bill took place, the commencement of this Act was indeed an event to be celebrated.
Collective bargaining in South Africa - past, present and future?, S. Godfrey, J. Maree, D. du Toit and J. Theron : book reviewsAuthor Jessica MyburghSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 21, pp 547 –551 (2010)More Less
This book has been on my desk through a looming public service strike, the 2010 World Cup and the subsequent reality of that public service strike, among other events. In the circumstances, its arrival and this review seemed particularly apposite. What follows, is a brief overview of the contents.