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- Volume 23, Issue 1, 2012
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 23, Issue 1, 2012
Volume 23, Issue 1, 2012
Author Geo QuinotSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23 (2012)More Less
The Editorial Committee of the Stellenbosch Law Review is honoured to welcome two new members to our Editorial Board: Professor Charles Ngwena of the Faculty of Law at the University of the Free State and Professor Lilian Chenwi of the School of Law at the University of the Witwatersrand.
Author T.N. MadonselaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 4 –15 (2012)More Less
I am deeply honoured to present the 2011 Annual Human Rights Law Lecture of the University of Stellenbosch.
I am particularly humbled by the interest that the academic community, particularly this university, continues to show in my office. I must confess, though, that the main attraction for me was the opportunity to renew my acquaintance with Professor Sandy Liebenberg, who for years has been one of our country's leading lights on human rights, particularly socio-economic rights.
The pursuit of human rights and democracy has always been at the centre of the struggle for democracy in this country. One of the beacons of hope that inspired this struggle was the Universal Declaration of Human Rights adopted in 1948. Closer to home, the Freedom Charter was a key inspirational document that informed the struggle for democracy and human rights.
Author Lesley GreenbaumSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 16 –39 (2012)More Less
A serious focus on research in the field of teaching and learning in law is advocated in this article. From a review of the legal education literature that has emanated from the United States of America, England, Australia and South Africa, it is clear that the field of legal education in South Africa has not attracted much scholarly attention. The article suggests that contextual factors, related to the substantive changes to South African law post-1994 have been responsible for this deficit. Law academics have chosen to research specific discipline areas, notably linked to the changes brought about as a result of the new constitutional dispensation, in favour of conducting research related to their pedagogical functions. In the international scholarship, a growing body of literature on legal education, fuelled by reports that document the state of legal education in each of the foreign jurisdictions, has emerged. Within the field of legal education, two particular themes appear to have predominated the recent literature: (i) the doctrinal/skills dichotomy in law curricula, reflected in tensions between law academics and the legal profession; and (ii) the need for inculcating ethical sensitivity, as part of the development of lawyers' professional identity, through the teaching of socio-ethical values in the academic curriculum. It is suggested that an engagement with these themes by South African legal educators, through research and scholarly writing, would enrich the debate that ought to take place amongst all stakeholders, in order to enhance the current state of legal education and to improve the quality of law graduates.
Gcaba v The Minister for Safety and Security : concurrent jurisdiction now settled law?
[Discussion of Gcaba v Minister for Safety and Security 2010 1 SA 238 (CC)]Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 40 –54 (2012)More Less
This paper seeks to critically analyse Gcaba v The Minister for Safety and Security 2010 1 SA 238 (CC). The central question which this paper seeks to answer, is where exactly Gcaba has taken the law, with respect to the intersection between administrative law and labour law, which has been a subject of much debate. The two most critical questions that the article seeks to deal with relate, firstly, to the question of concurrent jurisdiction between the Labour Court and the High Court in relation to labour matters; and secondly, to whether the conduct of a public service employer towards an employee can amount to administrative action, a matter which had been dealt with in Chirwa v Transnet Limited 2008 4 SA 365 (CC). Gcaba, it will be contended, has managed to confirm and concretise the correct position laid out in Chirwa that the conduct of a public service employer towards an employee does not necessarily amount to administrative action.
We will argue and demonstrate why we believe that Gcaba has not taken the law further than Chirwa with respect to concurrent jurisdiction. The paper will explain why Gcaba will not be the last case to deal with the issue of concurrent jurisdiction and why the matter is not settled law yet. To this extent, section 157(2) of the Labour Relations Act 66 of 1995 will be analysed in the light of the Constitutional Court's interpretation of the particular section in Gcaba and the minority views in the Chirwa judgment. Proposals will be made on how to resolve the interpretative challenges which have resurfaced in Gcaba.
Author Chuks OkpalubaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 55 –75 (2012)More Less
The pronouncements of the Supreme Court of Canada in Vancouver (City) v Ward  2 SCR 28 (SCC) have provided Canadian courts the long-awaited guidelines on the determination of claims for damages as the "appropriate and just relief" for breach of entrenched rights under section 24(1) of the Canadian Charter of Rights and Freedoms 1982 (the "Charter"). Faced with such a claim, the court must ask itself four pertinent questions. First and foremost, has a breach of a Charter right occurred? Secondly, if so, will damages serve the functional purpose of compensation, vindication and deterrence? If these questions are answered in the affirmative, the third question is whether the State could adduce any good governance considerations, probably, in the form of defence(s), to negate the claim. Finally, what, in monetary terms will be the appropriate and just award to the plaintiff having regard to the nature of the violation and the injury sustained. At that stage, the court may consider whether it will be necessary to award the plaintiff punitive damages. This article critically analyses in detail these guidelines in light of Commonwealth precedents on constitutional damages. It concludes that the judgment in Ward is more comprehensive, extensive, less rigid and more workable as against the Maharaj v Attorney General of Trinidad and Tobago (2)  2 All ER 670 (PC) formula. Indeed, it provides Commonwealth constitutional jurisprudence a third option in addition to the existing Maharaj/Simpson v Attorney General  3 NZLR 667 (NZCA) ("Baigent's case") formulation and the Fose v Minister of Safety and Security 1997 3 SA 786 (CC) approach.
Author S.A. CoetzeeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 76 –87 (2012)More Less
For quite some time now, the Department of Education has been attempting to rid schools of educators who commit sexual misconduct against learners. The question is why, with law and policy in place for regulating educator sexual misconduct, does the problem persist? In an attempt to answer this question, the author identifies and critically evaluates current law and policy regulating educator-on-learner sexual misconduct. Various problems with current law and policy are pinpointed and investigated.
The first problem identified is the conceptual confusion resulting from the use of various umbrella concepts in law and policy for identifying the problem of educator-on-learner sexual misconduct. The choice of sexual harassment as an umbrella concept in particular is found to be awkward. The choice of sexual harassment as an umbrella concept is related to the second problem, namely that labour law and policy are merely adapted to the sphere of education and applied to non-employment relationships such as the educator-learner relationship. The third dilemma identified is that educator-on-learner sexual misconduct is not clearly and sufficiently addressed in current education law and policy. The fourth problem identified is that sanctions for educator-on-learner sexual misconduct are not in line with the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the Children's Act 38 of 2005 and the Children's Amendment Act 41 of 2007, resulting in educators found guilty of less serious forms of sexual misconduct facing more serious consequences than educators found guilty of more serious forms of sexual misconduct.
Author A.J. Van der WaltSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 88 –94 (2012)More Less
Section 25(1) of the Constitution of the Republic of South Africa, 1996 provides that no one may be deprived of property except in terms of law of general application and that no law may permit arbitrary deprivation. In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC), the Constitutional Court explained that a deprivation of property will fall foul of section 25(1) either when there is insufficient reason for the deprivation (as further explained in that decision) or if the deprivation is procedurally unfair. Nothing further is said in that decision about procedurally unfair deprivation. In subsequent case law the Constitutional Court picked up on the distinction between substantively and procedurally arbitrary deprivation, without making it clear when a deprivation will be procedurally unfair or how procedural unfairness in terms of section 25(1) should be distinguished from procedural unfairness in terms of section 33 or PAJA. The author argues that the notion of procedurally unfair deprivation of property in terms of section 25(1) only makes sense to the extent that it refers to deprivation of property that does not result from administrative action. Consequently, deprivation of property brought about by administrative action should in the first place be adjudicated in terms of PAJA and not in terms of section 25(1) and only deprivation of property that occurs outside of the sphere of PAJA should be adjudicated in terms of section 25(1). However, as the author argues, the test for section 25(1) procedural unfairness will in any event probably resemble the PAJA test.
Reinforcing duty bearer accountability for socio-economic rights in Malawi : a conceptual alternative?Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 95 –117 (2012)More Less
This contribution commences by acknowledging that Malawi, like many African countries, faces serious development challenges which seriously impair the ability of African states to improve the livelihoods of their citizenry. The paper argues that any efforts by Malawi and other African countries to improve the livelihood of their citizenry are centrally connected to efforts undertaken to improve the realisation of socio-economic rights. This is because enhanced socio-economic rights realisation would immediately ameliorate the plight of the citizenry. After identifying public functionaries as central to the performance of obligations generated by human rights the paper argues that the social trust concept can be utilised to energise the performance of duties triggered by socio-economic rights. The paper argues that the social trust concept and the devices founded on it can be utilised to provide an alternative conceptual foundation for understanding and enforcing the duties that socio-economic rights generate in Malawi. The paper then demonstrates how understanding and enforcing duty-bearer obligations for socio-economic rights within the social trust framework stands a greater chance of revitalising the accountability of duty bearers to rights holders.
Popular culture, law and our "sexed and gendered lives" : feminist reflections on "refusal" and "sisterhood"Author Joel M. ModiriSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 118 –136 (2012)More Less
This article reflects on the current trajectory of feminist legal theory from the perspective of popular culture and social discourse. With the use of film theory, literature and entertainment media, the author illustrates how depictions of gender codes and representations of gender relations in popular culture link up with larger questions on sex and gender politics, equality and power. Analysing these issues in terms of the extent to which popular culture reinforces patriarchal prescriptions of women's identity and contributes to strengthening the culture of male dominance in society, two distinct theories are formulated as possible responses namely, an "ethics of refusal" and a "politics of sisterhood". The notion of "refusal" as introduced by Karin van Marle is an approach to issues of gender (in)justice and (in)equality that explores the capacity of women to resist male dominance and in turn, problematise the values and norms laid down by the reigning patriarchal order. To connect the refusal of patriarchal conceptions of women's issues to the refusal of gender power, a "politics of sisterhood" offers a counterweight to the underlying phallocentric conditions and structures that subordinate, exclude and control women. The main purpose of this article is to emphasise the importance of thinking about women's lives and concrete realities, as experienced under (the) law, in dynamic ways that break from traditional approaches to feminism and gender equality. Refusal and sisterhood are two perspectives that disclose such possibilities for reflecting on women's struggles for equality, dignity and recognition and on eradicating the vestiges of patriarchy and sexism in our society. In the final analysis, the author argues for more than just legal reform and instead calls for reconciliation between the sexes and genders and a radical transformation of sex and gender relations.
Erfregtelike onwaardigheid : enige lesse te leer vir die Suid-Afrikaanse reg uit die Nederlandse reg?Author Francois Du ToitSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 137 –156 (2012)More Less
The regulation of unworthiness to inherit in Book 4 of the (new) Dutch Civil Code (2003) occasioned numerous interpretation and application challenges to Dutch courts, notaries and inheritance scholars. These challenges correspond greatly with many of the contentious issues regarding unworthiness to inherit in modern South African law. This article investigates certain aspects of the Dutch legal position with a view to commenting on, and suggesting solutions to, corresponding challenges in the South African context. Issues such as the effect of unworthiness to inherit on matrimonial property claims as well as maintenance claims against a deceased estate, the suitability and appropriateness for South African law of a "forgiveness provision" that eliminates unworthiness similar to the one included in the Book 4 of the Dutch Civil Code and the regulation of unworthiness to inherit in the context of euthanasia are analysed from a legal-comparative standpoint.
The state of company law in South Africa
[Review of Modern Company Law for a Competitive South African Economy by Tshepo Mongalo (ed). Juta & Co Cape Town 2010. xxv and 479 pp. ISBN 9780702184635. Price R525 (soft cover)]Author Philip SutherlandSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 157 –177 (2012)More Less
The new Companies Act 71 of 2008 (the "Companies Act", the "Act", the "2008 Act" or the "new Act") is upon us. It came into force on 1 May 2011. In several areas of South African company law this signals major advances. First, the Act has been brought into line with the Bill of Rights. One of its stated purposes is to promote compliance with the Bill of Rights (s 7(a) of the Companies Act). Every person will now be regarded as having a right to associate by incorporating a company; the incorporation of a company is no longer a privilege that must be earned (s 13 of the Companies Act). The procedures for incorporation have therefore been simplified (ss 13-14 of the Companies Act). Freedom of expression is respected by the wide choice that it gives companies when it comes to choosing a name. Secondly, outdated and obsolete phenomena such as par value, capital maintenance and the doctrine of constructive knowledge are being rooted out, for the most part (ss 35, 19(4), Ch 2 Part D, and s 4 of the Companies Act). Thirdly, the Act is shorn of much of the unnecessary formalism that characterised the previous Companies Act, for example: it will be easier to make changes to authorised share capital and to issue shares (ss 36-41 of the Companies Act), all companies will not have to be audited (s 30 of the Companies Act), many special resolutions will no longer have to be registered (s 65 of the Companies Act), meetings of shareholders and directors may be informally held (ss 60, 74 of the Companies Act) and companies often will be allowed to do take-overs without court intervention (ss 113-116 of the Companies Act). Fourthly, stricter standards for the corporate governance of public and state-owned companies have been introduced and an attempt has been made to give statutory content to the duties of directors (Ch 2 Part F of the Companies Act). Fifthly, innovative concepts such as true amalgamations and mergers (ss 114-116 of the Companies Act), appraisal rights (s 164 of the Companies Act), and business rescue (Ch 6 of the Companies Act) have been borrowed from the United States and adapted for local circumstances.
Res Ipsa Loquitur & Medical Negligence: A Comparative Survey, P van den Heever & P Carstens : book reviewAuthor Andra Le Roux-KempSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 178 –180 (2012)More Less
The Appellate Division in the case of Van Wyk v Lewis 1924 AD 438 held that the doctrine of res ipsa loquitur does not apply in medical negligence cases in South Africa. Res ipsa loquitur is a doctrine or maxim that functions in the realm of the Law of Evidence and gives rise to a permissible inference which may be drawn if it is sustained by the proven facts. (It was suggested in Macleod v Rens 1997 3 SA 1039 (E) 1048 that res ipsa loquitur is not a doctrine but rather a maxim as it propounds no principle but is rather a particular form of inferential reasoning.) The maxim applies in those instances where a plaintiff proves an injurious result caused by an instrumentality which was in or under the exclusive control of the defendant or an injurious result following upon the happening of an occurrence solely under the defendant's control. It is furthermore said that the maxim can only be applied where the negligence alleged depends on absolutes and not relatives. And, it does not apply to cases that fall outside the knowledge and understanding of an ordinary, reasonable person. The book Res Ipsa Loquitur & Medical Negligence: A Comparative Survey purports to establish conclusively that the approach of the South African courts, that the doctrine should never find application in medical negligence cases, is untenable and out of touch with modern approaches.
Author O.H. DeanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 180 –182 (2012)More Less
A Guide to Intellectual Property is clearly aimed largely at the uninitiated in the field of intellectual property law and it is therefore primarily suited for use by students, practitioners first venturing into the field and possibly lay persons involved with the use of intellectual property who seek to come to grips with, and acquire a better understanding of, the subject matter with which they are involved.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 183 –188 (2012)More Less