- A-Z Publications
- Stellenbosch Law Review = Stellenbosch Regstydskrif
- Previous Issues
- Volume 22, Issue 1, 2011
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 22, Issue 1, 2011
Volume 22, Issue 1, 2011
South Africa's transformative constitution : towards an appropriate doctrine of separation of powersAuthor Sandile NgcoboSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 37 –49 (2011)More Less
It is a great honour to deliver the Annual Human Rights Lecture here at the University of Stellenbosch. I am quite grateful for this opportunity to speak to and exchange views with members of the academic community present, including law students. I note that this event is sponsored by Webber Wentzel. I thank them for making this evening possible. It is heartening that they have chosen to support such a worthy cause as an annual lecture on human rights.
Author Karin CalitzSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 50 –70 (2011)More Less
Clauses in restraint of trade in employment contracts still lag behind in respect of protection afforded to employees. There is no legislation regulating these agreements and the unequal bargaining position of employees has not been taken sufficiently into consideration in judgments establishing the reasonableness of the restraint. The rules of the common law, now generally regarded as inadequate to regulate the employment relationship, are left intact to regulate without interference a very important part of the employment contract.
In the light of the constitutional right to dignity, freedom to choose a trade and the right to fair labour practices, which could all be potentially limited by a restraint, the common law rules regulating restraint agreements in employment contracts should be amended to reflect these values.
To attain this, the courts could develop the common law applicable to restraint agreements in terms of section 8(3) of the Constitution. This would entail testing the common law rules pertaining to reasonableness of the restraint directly against section 22 of the Constitution.
Alternatively, in the light of the criticism of the Constitutional Court in Barkhuizen v Napier against this approach, the courts could develop the common law through the prism of public policy in terms of section 39(2) to reflect the values of the Constitution without directly testing the law of contract against a specific constitutional right. Should courts develop the common law test for reasonableness in terms of section 39(2), freedom to trade should - in the light of the value of freedom to work and the unequal bargaining position of employees - enjoy primacy instead of pacta sunt servanda. The effect of developing the common law would then be that the onus to prove that the restraint is reasonable would shift from the employee to the employer.
The interpretation and application of article 13(b) of the Hague Convention on the Civil Aspects of International Child AbductionSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 71 –93 (2011)More Less
This article examines how courts in the UK, the USA and South Africa apply and interpret article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction.
Courts in the UK have always adopted a very narrow interpretation and application of this defence. Even domestic violence victims who flee with their children to escape domestic violence have had difficulty invoking this defence successfully. This very narrow interpretation is due to the fact that English courts are primarily concerned with protecting and adhering to the principles of the Convention and they usually only consider the best interests of children in general. Additionally, English courts assume that imposing undertakings will sufficiently protect children from exposure to grave risk of harm. In the USA courts have moved away from the very strict application of this defence and have very fittingly applied and interpreted this defence much more widely, because courts consider the safety of the individual child to be paramount. This new direction seems to be in accordance with the modern challenges of increased domestic abuse that are faced worldwide. It seems that South African courts are similarly following a wider approach to the defence due to the fact that the best interests of a child will be of paramount importance. This approach is firmly entrenched in the South African Constitution, the Children's Act as well as the Convention.
It is submitted that courts hearing a matter under the Convention should give consideration to the circumstances of each case concerning each individual child and a mechanical approach towards parental child abduction matters should be avoided, especially in instances where domestic violence is raised as the basis of the article 13(b) defence. Additionally, in certain circumstances undertakings will not sufficiently protect victims of domestic violence against harm and article 13(b) as defence should succeed in those instances.
Author R.J.V. ColebySource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 94 –114 (2011)More Less
Like all modern democracies, the right to legal representation is guaranteed by the Constitution of Botswana ("the Constitution of Botswana"). But sadly, constitutional provisions by themselves do not offer protection of fundamental human rights. Constitutional provisions become mere rhetoric and insufficient mechanisms for the protection of human rights, if proper measures are lacking to ensure that they are followed through. If the right to legal representation is to be attained, the thesis that first generation civil and political rights are negative rights which merely forbid the state from violating the rights of the individual is unsustainable. The right to legal representation is meant to ensure procedural equality. The state has a standing body of trained prosecutors who are supported by the police.
Author C.G. Van der MerweSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 115 –136 (2011)More Less
The Sectional Titles Amendment Bill of June 2010 proposes to address gender equality, remove obsolete provisions, make technical adjustments, extend consumer protection and eliminate a substantial number of problems encountered in the practical application of the Act.
The most important amendments relate to an adaptation of the definitions of "developer" and "owner"; the facilitation of unanimous resolutions; the clarification of whether doors and windows form part of a section or part of the common property; the rectification of the discrepancies pertaining to certificates of real right of extension of sections and of exclusive use areas; the fractionalisation of undivided shares in units; the extension of sections and of schemes by the addition of sections; contributions to the administrative fund and the legalisation of special levies; and a freeze on the use of exclusive use areas. This will transform the Sectional Titles Act into a highly efficient statutory instrument to tackle the ever-increasing issues facing the sectional title industry, bring clarity to conveyancers and deeds registry officials, and strengthen the position of trustees and managing agents involved in the governance of schemes.
However, the relation between the relevant provisions of the Act and the Local Government: Municipal Property Rates Act 6 of 2004, needs tidying up. Further main issues of concern are the overfractionalisation of rights of exclusive use; the fact that the new owner is not made liable for outstanding instalments on special levies after a unit has been registered in his or her name; the non-qualification of the wide discretion of trustees to impose special levies; the unclear division of the fund for administrative expenses into an operational and a reserve fund budgeted for at each annual general meeting and the non-adoption of a two-tiered management structure for larger and especially mixed-use schemes.
Author Meda CouzensSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 137 –159 (2011)More Less
This article is an investigation into the role of local authorities in matters concerning children. The article contains an analysis of the relevant provisions of the Constitution of South Africa of 1996, child protection legislation, statutes governing the functioning of local government and national policies, in order to establish the obligations of the local governments in respect of children. A brief analysis of a few relevant cases pertaining to socio-economic rights of children, which are relevant for local governments, is also provided. The author emphasises the scarcity of statutory provisions mandating local governments to take charge of matters affecting children. This makes space for arguments that local governments can do very little for children. The author argues that a creative interpretation of legal provisions pertaining top local governments indicates a much wider potential for intervention in matters regarding children on behalf of the local governments. The cases discussed in this article show that courts could play a significant role in holding local governments accountable for the manner in which they implement children's socio-economic rights. The article concludes by suggesting that a more active role of the local governments in respect of children is possible within the current legal framework, if a creative interpretation of the duties of the local governments is employed.
Author Jaco Barnard-NaudeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 160 –172 (2011)More Less
This article represents an involvement of deconstruction in the South African law of contract. Having provided some context, history and justification for the involvement of deconstruction in the South African law of contract, the text avails itself of the deconstructive method of narrative interruption in reading the Supreme Court of Appeal's judgment in the Bredenkamp matter. The conclusion emphasises that the text's deconstructive reading of the Bredenkamp judgment is not embarked upon in the name of a relativistic nihilism, but rather in the name of the impossible responsibility that inheres in adjudication.
Author Stella VettoriSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 173 –187 (2011)More Less
An examination of South African case law demonstrates that the link between constructive dismissal and common law repudiation of contract has been severed, and a new concept of constructive dismissal has been created unrelated to repudiation of contract. English case law demonstrates that this is not the case in England, as well as the fact that what an employee needs to prove in a constructive dismissal case (based on the common law) is the same as what such employee needs to prove in terms of legislation.
The result is that in South Africa, even though the purpose of legislation was to extend protection for employees, there may be instances where an employer would escape liability for constructive dismissal in terms of legislation but not in terms of the common law.
Author S.S. TerblancheSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 188 –204 (2011)More Less
Although there appears to be large-scale agreement that previous convictions, especially for similar crimes, justify the imposition of increased punishment, there are no clear principles on which such increase should be based in South Africa. Although the Criminal Procedure Act requires of the sentencing court to take previous convictions into account, it provides no guidelines regarding the extent of any increase. Nor is case law more specific. The result is wide discrepancies in sentences when the offender has previous convictions. Some judicial officers hold that the seriousness of the offence should still be the main determinant of the extent of the punishment, but in many cases previous convictions result in sentences many times more than what is justified purely by the seriousness of the crime. This happens, in particular, when the offence itself is rather petty. Having dealt with the problem that the presence of previous convictions are not consistently dealt with in our law, the article considers a variety of standards and practices that might be of assistance in addressing this problem. In the process various theories that have been advanced by some of the most knowledgeable theorists on sentencing are referred to, as well as practices as wide-ranging as those in the Netherlands, a few states in the USA and in South African legislation. Finally, the proposals by the South African Law Commission are considered, before a number of proposals are offered in order to improve the current situation.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 205 –227 (2011)More Less
The main aim of labour market activation policies is to bring jobless people from unemployment or inactivity into work or, at the very least, to influence the employment prospects of the unemployed positively. Activation schemes typically make benefit receipt conditional upon job search activities, acceptance of available job offers and participation in training activities. This article addresses the appropriate role of the Unemployment Insurance Fund (UIF) in the establishment of activation in South Africa. It focuses on a number of principled and practical considerations and constraints that challenge the use of activation mechanisms, such as the fragmentation of the existing legal and institutional frameworks, the lack of available employment opportunities and human rights considerations. It is argued that the limited and short-term impact of the UIF, its strong labour-market orientation and its inability to appropriately contribute to preventing and combating unemployment or to reintegrate the unemployed into the labour market all point to the urgent need to reform the UIF. The gaps in the current unemployment insurance system are highlighted, as is the need to enhance the relationship between the unemployment insurance system and (appropriate) activation measures. The role of existing social security and employment creation initiatives in this dynamic is also considered. In particular, the absence of a link between those excluded from the UIF and the activation mechanisms introduced by the Skills Development Act 97 of 1998 is underscored. Proposals contained in the Employment Services Bill are also evaluated. It is suggested that an expanded form of employment services provision, incorporating a network of labour centres, ought to receive prioritisation in the South African context. This must be coupled with a move to consolidate the various available governmental databases in terms of which unemployed persons may register as job-seekers. The creation of an enabling framework to achieve such goals would require a variety of legislative changes, some of which are discussed in the article.
Author Stephan Van der MerweSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22, pp 228 –230 (2011)More Less
"In this book the author deals in concise terms with the categories of objection which most frequently arise in civil litigation, and in relation to each of them, refers to and provides the most leading and useful authorities. The busy practitioner confronted with an unruly witness will thus have at his disposal the tools with which to formulate a cogent and legally sound argument, on short notice, as to why a particular piece of testimony should be excluded. His opponent will similarly be assisted in dealing with the objection in a helpful and lucid manner."
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 review, Stellenbosch Law Review, 21 (2) 2010 : pp. 366-370 : erratumAuthor Wouter De VosSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 22 (2011)More Less