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- Volume 23, Issue 2, 2012
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 23, Issue 2, 2012
Volume 23, Issue 2, 2012
Author June SinclairSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 191 –224 (2012)More Less
The article points to the incidence and impact of poverty and the inadequacy of current policies to deal with it. It presses for acceptance of the view that the persistence of high levels of severe poverty coupled with unfairly restricted access to social assistance grants are unconstitutional. Acknowledging that the elected branches of government bear primary responsibility for correcting the inequitable distribution of income, it argues that the courts cannot defensibly stand back, employing arguments of deference and institutional incapacity while the Constitution of the Republic of South Africa, 1996 demands a transformative vision that will give content to the socio-economic rights enshrined. The particular focus of the article is income poverty of unemployed, able-bodied adults aged 18-59 years and the constitutional right of everyone to access to social assistance grants. It claims that the definitional modus in the Social Assistance Act 13 of 2004 is unfairly discriminatory and violates the rights to dignity and equality of the group. It also argues for an interpretation of the socio-economic right to social assistance that would be faithful to the transformational vision of the Constitution. Not only should the offending sections of the Social Assistance Act be declared invalid and in need of re-crafting, but section 27 of the Constitution must be interpreted to give enforceable content to the right it protects. To achieve this will require an understanding of the separation of powers and the reasonableness standard developed by the Court different from the approach taken, for example, in Mazibuko v City of Johannesburg 2010 4 SA 1 (CC). Substantial reliance is placed on the commendable decision of the Constitutional Court in Khosa v Minister of Social Development 2004 6 SA 505 (CC). Reasonableness review, progressive realisation and available resources are traversed before a clutch of remedies is examined. The structural interdict, entailing a process in which the Court retains jurisdiction, and used so creatively in Colombia, is advocated to remedy a situation in which the Executive has failed to achieve its own goals for tackling unemployment and poverty. If the Constitutional Court demurs while growing civil unrest damages our democracy, the Court's legacy will be irretrievably tarnished. It must reconsider its role as the custodian of the Constitution and make the business of interpreting constitutional text within a normative vision its business.
The need for new legislation and/or divorce mediation to counter some commonly experienced problems with the division of assets upon divorceAuthor Madelene De JongSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 225 –240 (2012)More Less
With regard to marriages concluded in terms of the Marriage Act 25 of 1961 and the Civil Union Act 17 of 2006, the division of the spouses' assets is principally determined by the matrimonial property system applicable to the spouses' marriage. With regard to marriages concluded in terms of the Recognition of Customary Marriages Act 120 of 1998, the matrimonial property system selected by the parties is less important and the court's view of what is equitable and just is decisive in determining how the parties' assets will be divided. Although our law provides clear rules and instructions regarding the division of the parties' assets upon divorce, there are certain difficulties and practical problems which are often experienced and which make this aspect of divorce one of the thorniest issues to resolve in divorce litigation. These problems relate to the postponement of patrimonial claims or the finalisation thereof to a date after the divorce order, uncertainty about the extent of the parties' assets and the dissipation of such assets. A possible solution to counter some of these problems is the enactment of new legislation in terms of which the effective date for determining patrimonial claims is accelerated to the date of the service of the divorce summons. A better solution through which all the problems encountered with the division of assets upon divorce can be precluded is divorce mediation. In the mediation process parties can holistically negotiate with the assistance of a trained and accredited mediator on patrimonial claims as well as all other issues in the early stages of divorce. An effective date for the determination of patrimonial claims can already be agreed upon at the first mediation session and at the second mediation session an informal discovery process can be followed to give parties certainty about the extent of marital assets and minimise the risk of "preventative estate planning".
The admissibility of documentary hearsay evidence in arbitrations in terms of the Labour Relations Act 66 of 1996
[Discussion of POPCRU obo Maseko v Department of Correctional Services 2011 2 BLLR 450 (LC)]Author Nicci Whitear-NelSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 241 –252 (2012)More Less
This note considers the proper approach to determining the admissibility and reliability of documentary hearsay evidence in arbitration proceedings in terms of the Labour Relations Act 66 of 1995. The author notes that such proceedings are not equivalent to cases decided in the civil and criminal courts. However, she shows that the provisions of the Law of Evidence Amendment Act 45 of 1988 as regards the admissibility of hearsay evidence remain relevant. The author considers the various factors specified in section 3(1)(c) of the Law of Evidence Amendment Act in the context of the case under discussion. The author also considers the common law requirements for the admissibility of documentary evidence. The author distinguishes between the issues of determining the admissibility of evidence and of assessing the weight of the evidence, but shows that in the context of hearsay evidence the two concepts are conflated. This is because a high index of reliability suggests that the hearsay evidence should be admitted and given its due probative value in the context of all the evidence before the arbitrator. The author concludes, however, that an overly technical or legalistic approach is neither necessary nor desirable in the labour dispute resolution context. In her view, the crucial question is simply whether the arbitrator considered the interests of both parties, in the broad context of the factors enumerated in section 3 of the Law of Evidence Amendment Act, and made a rational decision to admit or exclude the hearsay evidence on a conspectus of the entire body of relevant evidence before her.
The discretion of courts in encroachment disputes
[Discussion of Phillips v South African National Parks Board (4035/07)  ZAECGHC 27 (22 April 2010)]Author Zsa-Zsa Temmers BoggenpoelSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 253 –264 (2012)More Less
The main focus of this note is Phillips v South African National Parks Board (4035/07)  ZAECGHC 27 (22 April 2010) SAFLII http://www.saflii.org/za/cases/ZAECGHC/2010/27.html (accessed 13-06-2012), which was a case dealing with the erection of a fence that encroached on the applicant's property. The note explores the current way that courts deal with encroachment disputes in light of the Phillips judgment. This judgment correctly confirms that courts assume the existence of a wide discretion to replace injunctive relief (or mandatory interdicts) with compensatory awards; it illustrates how the discretion will be exercised in order to reach a just and equitable outcome and lays open the possible constitutional implications that may be triggered if encroachments are not ordered to be removed.
What is problematic in this case is that the court considered the possibility of ordering transfer of the land to the affected landowner. If a court exercises its discretion in favour of leaving the encroachment in place and additionally orders that the encroached-upon land be transferred to the encroacher, this court order sanctions an involuntary transfer of the affected property. The loss of property or property rights needs to comply with section 25 of the Constitution of the Republic of South Africa, 1996. The crucial concern in this case is whether the common law actually authorises such a court order that results in the deprivation. However, the possible constitutional problem that may have been created by an order for transfer of the affected land was avoided because the court ordered in terms of its discretion that the encroachment be removed. It should be noted, though, that the court's remarks concerning the transfer order were made purely on the basis of the balance of prejudice and not on any constitutional principle. To my mind, the possibility of constitutional infringement may very well have arisen if the balance of prejudice favoured the encroacher and therefore the issue needs to be considered.
Author T. BekkerSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 265 –279 (2012)More Less
This article is aimed at a detailed critical analysis of the basis of the integration rule in light of the current approaches to contractual liability in the South African law of contract. In light of this it will be argued that the parol evidence rule does not fit into any of the current contractual liability approaches of the South African law of contract and that, by reason of this alone, the continued recognition thereof should be seriously questioned.
Author Helen KruuseSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 280 –296 (2012)More Less
This article takes a critical look at law teaching in South Africa and seeks to consider how the application of experiential learning theory may assist law students in gaining a deeper understanding of the law in general, and the complexities of real life practice in particular. While clinical legal education is often seen as the locus of experiential learning in law, the author proposes that well-structured simulations in class can achieve similar goals. The article comprises a description of the nature of experiential learning and a further description of the application of the principles of experiential learning in a particular simulation exercise in a Legal Ethics course (using the US case of Wash St Phys Ins Exch v Fisons Corp 858 P2d 1054 (Wash 1993) as a basis). The author posits that the so-called experiential learning "cycle" or "process" enables a process of learning which draws out the students' beliefs and ideas about a topic so that it can be examined, tested and integrated with new, more refined ideas. This notion is then in keeping with the expectation that students who emerge from higher education institutions have developed meta-cognitive skills. Essentially then, it is hoped that, by using the methods proposed in this article, students can then manage their own development and learning throughout life.
Author Mabowa Thomas MokoenaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 297 –318 (2012)More Less
The institutional position of the prosecutor remains a thorny issue in many jurisdictions, particularly as regards the prosecutorial authority's relationship with the executive power of state. South Africa is no exception in this regard. Although the absolute independence of the prosecutorial head is both desirable and ideal, in a perfect world, it is not necessarily feasible, as noted in the Italian example. Here, as will be seen, the vices of absolute independence outweigh the otherwise obvious virtues entailed therein. The much-vaunted democratic requirement of accountability, which essentially requires political accountability to a political overseer, does not necessarily offer much in the way of democratic accountability, as it is often susceptible to political manipulation and partisanship. It is submitted, in this article, that the Japanese prosecutorial model, with its systems of the prosecutorial review commissions and judicial reviews of prosecution, offer a more feasible and democratic form of democratic accountability, worthy of emulation and adoption by all models which seek solutions to the institutional quagmire engulfing many prosecutorial systems.
Tainted elements or nugatory directive? The role of the general anti-avoidance provisions ("GAAR") in fiscal interpretationSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 319 –351 (2012)More Less
A number of commentators in South Africa have been critical of a key aspect of the relatively new General Anti-Avoidance Rule ("GAAR") (Part IIA of Chapter III of the Income Tax Act 58 of 1962) suggesting that section 80A(c)(ii), in particular, is not necessary in light of existing common-law approaches to statutory interpretation. The role of section 80A(a)(ii) is equally uncertain in light of these commentators' arguments. The broader question examined in this article is: "What can these provisions achieve that is not already adequately facilitated by the existing common law?" In turn the article considers whether these common-law principles are sufficient to combat tax avoidance and whether these provisions seek to achieve a goal that is beyond that provided by these common-law principles?
In answering the first question the analysis highlights the comparatively limited scope of these common-law principles. It is concluded that because of, inter alia, the limited scope of these common-law principles they are not sufficient to combat tax avoidance. Further, in the taxation context the role of these common-law principles has been significantly impacted upon by the Duke of Westminster principle. In regard to the second research question, from the analysis it becomes clear that the statutory provisions have a wider operation than the common-law principles. Notably the statutory provisions are not premised on the prerequisites that are required to enliven the application of the subject common-law principles. Specifically, it is contended that legislative direction to have regard to the existence or absence of commercial substance (section 80A(a)(ii)) that includes a focus on individual steps that are part of a broader arrangement that lack commercial substance (section 80C(2) (a) and (b)(iii)) will make a positive contribution combating tax avoidance in South Africa.
Author F.D. MnyonganiSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 352 –369 (2012)More Less
This article is about duties of a lawyer in a multicultural society like South Africa. South Africa is a multicultural society characterised by among others a constant competition of cultures, values, and norms. At the heart of the competition lies the use of the law as a tool for social change. Under the colonial government and later apartheid, the Western-influenced legal system de-centred the African customary law to become the dominant normative point of reference. African customary law, which was applicable to the majority black population and still is today, became applicable in as far as it was not repugnant to the Western-inspired norms. The dominant legal system, its norms, values and procedures became the standard against which customary law was to be measured. Available literature on the two legal systems reveals that there are more dissimilarities than there are similarities. One such dissimilarity is the use of lawyers in dispute resolution processes. Customary law knows no class of people called lawyers and has no role for them in its processes and procedures. In a constitutional democracy, however, legal representation has become an indispensable feature of justice in both legal systems. South African lawyers are trained according to the norms and values of the Western-inspired dominant legal system. They execute their duties in accordance with the dictates of the dominant legal system. This article has argued that duties of a lawyer in South Africa are designed to serve the dominant legal system and are therefore not adequate to respond to the challenges of a multicultural society. The premise of the argument is this: If legal dualism is a reality in South Africa and there are vast dissimilarities between the two systems, then the duties imposed by the two legal systems should also be different.
Author M.A. MullerSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 370 –380 (2012)More Less
The ability to analyse uncertainty does not reside within most people's experience. Certain fallacies frequently appear. An important example is the so-called prosecutor's fallacy. It is a specific error of logic commonly made when arguments involving probabilities are considered. Since these errors keep happening and people tend to avoid reasoning in terms of probability theory, courts do not always come to the best possible conclusion in matters involving uncertainty. In this paper we discuss different aspects of faulty reasoning concerning uncertainty in legal matters.
Author Andrea Von ZelewskiSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 381 –407 (2012)More Less
South Africa is an attractive location for a considerable number of German-speaking people. The migration of members of the German community from their home country to South Africa was caused by historical events, such as the First and Second World Wars. Nowadays it is rather due to factors like globalisation and changing life styles. It is estimated that there is a German community in the Western Cape alone of about 300,000 or more.
With immigration people start new lives. Only a small number of them consider the legal implications of building up assets and creating liabilities in a foreign country, especially when it comes to their own estate planning. In most cases they are not aware of the difficulties they have to consider when it comes to the planning of their own estate or, if they fail to do so, the difficulties their beneficiaries will face when it comes to the administration and distribution of these estates.
The objective of the article is to illustrate potential conflicts of law in cross-border successions between Germany and South Africa.
After a short introduction the article starts in part two with a brief description of some central differences in the substantive law of succession in both countries to illustrate the different ways that South African and German law deal with the main issues in the law of succession. The third part focuses on the international jurisdiction in civil proceedings, the fourth part deals with the Private International Law ("PIL") rules of each country. Part five deals with the conflicts which might arise out of the application of the PIL rules of both countries to one estate. The article closes with a discussion on instruments available to minimize potential conflicts in cross-border successions.
Jones & Buckle: The Civil Practice of the Magistrates' Courts in South Africa I: The Act
Jones & Buckle: The Civil Practice of the Magistrates' Courts in South Africa II: The Rules, D.E. van Loggerenberg : book reviewsAuthor Wouter L. De VosSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 408 –413 (2012)More Less
It gives me pleasure to write a review of the tenth edition of Jones & Buckle: The Civil Practice of the Magistrates' Courts in South Africa ("Jones & Buckle"). Various editions of this work have been part and parcel of my library ever since I commenced my legal career. I acquired the sixth edition of Jones & Buckle, published in 1957 under the authorship of J Herbstein, PWE Baker & S Aaron, in 1978, when I commenced practising at the Johannesburg Bar, for the princely sum of R30. This was shortly before the appearance of the seventh edition in 1980. The sixth edition of Jones & Buckle was my companion while I was in practice and later editions of the work served as a valuable source of knowledge during my years as a university teacher of civil procedure.