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- Volume 23, Issue 3, 2012
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 23, Issue 3, 2012
Volume 23, Issue 3, 2012
Re-defining national sovereignty : the key to avoid constitutional reform? Reflections on the 2011 Green Paper on Land ReformAuthor Annika RudmanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 417 –437 (2012)More Less
The results of post-apartheid land reform in South Africa have for a substantial period of time prompted scholars to ask key questions about the ability of law to achieve social change. Change in this case translating into an equal (based on race) distribution of agricultural land and in turn the role of the distribution of such land in combating poverty. With the imminence of the centenary of the notorious Native Land Act 27 of 1913, which dispossessed millions of black South Africans, issues of land reform are contentious and high on the agendas of both the government and civil society. Currently most of the deadlock in implementing and rejuvenating the existing reforms is linked to the perceived limitations within the Constitution of the Republic of South Africa, 1996 itself and the apparent difficulties in amending it. Therefore, one possible alternative way of rectifying the massive inequalities in the distribution of agricultural land is to try to fashion new discourses, which could expand the state's ability to undertake the necessary reforms. This article sets out to explore what appears to be one such (new) discourse, as introduced in the Green Paper on Land Reform of 2011, focusing on how the concept of state sovereignty can be used or misused, defined or re-defined to suit the determinations of a state, such as South Africa, in agrarian reform. This article emphasises the possible links between different theories on state sovereignty (internal and external) and agrarian reform for agricultural purposes; and the way in which the idea of state sovereignty can act as a vehicle for hard-line agrarian reform when all else appears to have failed. This article furthermore attempts to highlight some alternative avenues in constitutional interpretation to furnish new routes out of the current stalemate; focusing on remedies which currently are under explored and deserve more scholarly attention.
Equitable intellectual property protection of computer programs in South Africa : some proposals for reformAuthor Caroline B. NcubeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 438 –461 (2012)More Less
This paper examines the intellectual property ("IP") protection of computer programs. It considers how South Africa can achieve an equitable balance between creators' interests in securing remuneration and attribution for, and users' interests in securing affordable access to, these programs.
The criterion used for determining equity is whether legal certainty has been achieved with regard to the nature and scope of protection; whether the protection is compatible with the nature of computer programs, programmers' needs and practices, and whether, ultimately, the protection enables user access to affordable computer programs. The paper finds that existing IP protection is inequitable due to its anti-competitive, and innovation-chilling effects, which hinder creative efforts and, consequently, thwart access to affordable computer programs. These negative effects are primarily due to legal uncertainties, incompatibilities with the functional and abstract nature of computer programs and programming practices that favour re-use and modularisation of source code.
It then argues that certain changes in law that permit reverse engineering and partially codify the approach to non-literal copyright infringement; the judicious interpretation and application of existing protection and the introduction of measures such as pre-patent grant opposition would more fairly balance creators' and users' rights. Ultimately, it concludes that the most equitable route is for creators to eschew the current forms of IP protection in favour of free and open source software and open business models, which permit innovation sharing, enable viable revenue generation and attribution for creators and enable user access.
Author Jaco Barnard-NaudeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 462 –475 (2012)More Less
This article represents a first (and tentative) excavation of the origin of what Plato's Republic refers to as the "ancient quarrel" between philosophy and poetry. It is argued that this quarrel must be understood in the context of the role of the law and of the sovereign philosopher king in the Republic. The author contends that what the Republic effectively achieves is a problematic opposition between aesthetics and positive law. This opposition is further considered within the context of the Greek poiesis (the original name in the West of art in general). It is pointed out that, at least for the Greeks, poiesis included the activity of lawmaking - law, like poetry, thus represented a "presencing" as opposed to what Heidegger would call centuries later in the context of the domination of humanity by technology, a challenging-forth. The understanding of lawmaking as an art of revealing, of course ties in with the natural law approach, classically referenced in Sophocles' Antigone. The article proceeds to trace the thought of Giorgio Agamben on the rise of the will to power which coincides in modernity with the dominant emergence of technology (enabled by a techno-scientific conception of law) and an instrumentalisation of the arts. In a concluding section, with reference to the resistance poetry of the Afrikaans tradition, it is argued that the opposition between law and poetry deconstructs - poetry is the counter-law (poiesis) within the law (poiesis) itself, the madness which Derrida would have referred to as "perhaps not so mad".
The approach of the Supreme Court of Appeal to the enterprise reality in company groups
[Discussion of Consolidated News Agencies (Pty) Ltd (in Liquidation) v Mobile Telephone Networks (Pty) Ltd 2010 3 SA 382 (SCA)]Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 476 –489 (2012)More Less
Company law has not yet been able to give effect to the enterprise reality in dealings with corporate groups, while maintaining the principle of the separate legal personality of the companies comprising the group. This case note considers the judgment in Consolidated News Agencies (Pty) Ltd (in Liquidation) v Mobile Telephone Networks (Pty) Ltd 2010 3 SA 382 (SCA), where the majority considered the combined transactions of two fellow-subsidiaries as constituting a loss of property for purposes of indemnification in terms of section 33(1) of the Insolvency Act 24 of 1936. The note draws a comparison between this decision and Phillips v Brewin Dolphin Bell Lawrie Ltd  UKHL 2;  1 WLR 143. J Vella "Departing from the Legal Substance of Transactions in the Corporate Field: The Ramsay Approach Beyond the Tax Sphere" (2007) 7 Journal of Corporate Law Studies 243 257 argues that Phillips may be explained by way of the purposive interpretation of commercial legislation. It is submitted that the same can be said of the approach of the Supreme Court of Appeal in the CNA decision. In terms of this approach a statutory provision must be given a purposive interpretation in order to determine the nature of the transaction to which it is intended to apply. The court must then decide whether the actual transaction, which might comprise of a number of separate parts intended to operate together, falls inside the scope of the purpose of the section. This approach may be especially helpful, considering the inclusion of purposive interpretation clauses in recent commercial legislation. At the same time, it might aid courts to provide greater acknowledgement of the enterprise reality within corporate groups in the appropriate circumstances.
Judicial review of the pardon power in section 84(2)(j) of the Constitution of the Republic of South Africa, 1996Author Karthy GovenderSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 490 –506 (2012)More Less
Section 84(2)(j) of the Constitution of the Republic of South Africa, 1996 ("the Constitution") explicitly vests the power to pardon in the President and when exercised it sometimes unravels the outcome or result of a judicial process. Setting aside the decision of the judges made in terms of the law may be incompatible with the supremacy of the Constitution and with the independence of the judiciary. The issue is how can the pardon power be reconciled with the independence of the judiciary and related provisions.
This paper argues that the pardon power is constrained by the broader objectives and visions of the Constitution. Given its impact on the judicial process, it must be exercised in a manner that advances the public interest or good as opposed to the interests of the beneficiary of the pardon. It argues that the exercise of the pardon power is not administrative action and therefore not susceptible to review under section 33 of the Constitution and under the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"). However, it is subject to review under the principles of legality. The paper tracks the development of the jurisprudence in this regard. It submits that it would be imprudent given the pronounced shift that appears to have occurred in Albutt v Centre for the Study of Violence and Reconciliation 2010 5 BCLR 391 (CC), for presidential advisors to rely on the reasoning of the majority in Masetlha v President of the RSA 2008 1 BCLR 1 (CC) that the duty to act procedurally fairly is not a requirement under legality. After reviewing the cases on legality the paper argues that, in addition to incorporating a process so as not to irrationally exclude the victims, legality review requires the President to act lawfully, in a bona fide manner, and rationally. This would require justifying the decision to pardon. Rationality review under legality is a generic category which is capable of accommodating most, if not all, the grounds of review listed in PAJA. It concludes by submitting that the terrain regarding the control of executive power has most decidedly changed in the last few years and the new rules must be taken cognisance of in order not to create further unnecessary tension between the executive and the judiciary.
Concerns regarding new search and seizure powers granted to the SARS in terms of the Tax Administration ActSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 507 –526 (2012)More Less
Section 74D of the Income Tax Act 58 of 1962 ("the Act") granted the power of search and seizure to the South African Revenue Service, the basic underlying principle being that the Commissioner has to obtain a warrant from a judge prior to a search and seizure operation. The previous section 74(3) of the Act provided that the Commissioner was empowered to authorise and conduct a search and seizure operation without the requirement of a warrant. Section 74D of the Act was recently reconsidered and the Tax Administration Act 28 of 2011 ("TAA") contains the new statutory provisions on search and seizure which in turn repealed and replaced section 74D of the Act. One of the more controversial provisions of the TAA provides that the Commissioner can, under certain circumstances, conduct a search and seizure operation without a warrant.
These new warrantless search and seizure provisions of the TAA were analysed in this article. It was established that warrantless search and seizure provisions are not uncommon in other statutes, but that the content thereof often differs. The new warrantless search and seizure provisions were compared to the warrantless search and seizure provisions of the Competition Act 89 of 1998 ("Competition Act"), and it was found that the warrantless TAA provisions are not in all respects as circumscribed as those of the Competition Act and recommendations for counterbalances were made.
It was concluded that the warranted search and seizure provisions of the Act and the TAA should be constitutionally valid but that the constitutionality of the new warrantless provisions of the TAA is not beyond doubt. It was however found that the TAA does not provide for "instant" warrantless powers, which have been found to be inconsistent with the Constitution of the Republic of South Africa, 1996. There is still the general requirement of a warrant in terms of the TAA, with only certain exceptional circumstances under which a search and seizure can be conducted without a warrant.
Author Carmel Van NiekerkSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 527 –539 (2012)More Less
The claim for wrongful life is by no means a novel idea to the South African legal arena. The judiciary has on two occasions been afforded the opportunity to consider and afford recognition to this claim. Unfortunately it has failed to do so. Its failure to do so has amounted to a missed opportunity to develop the common law. This at a time in South Africa's history when the Constitution of the Republic of South Africa, 1996 clearly places a mandate on courts to develop the common law to bring it in line with the dictates of the Constitution.
This article therefore aims to examine the jurisprudence in South Africa on wrongful life claims. It, in particular, aims to examine the manner in which such claims have been dealt with as well as the reasons provided for its non-recognition. This article will also examine the manner in which the post-Constitution decisions have either complied with or deviated from the standards imposed in the Constitution and considers whether a different outcome could have been reached.
Author Lilian ChenwiSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 540 –563 (2012)More Less
The growth of informal settlements or slums has been an issue of concern for many, with international initiatives increasingly focusing on informal settlements, particularly the need to improve the living conditions in these settlements. This article examines the challenge of dealing with informal settlements, with particular focus on South Africa. It analyses the legislative and judicial processes at work in addressing informal housing issues in South Africa. The South African government is attempting to deal with the question of informal settlements and has adopted policy measures with some good principles. It is argued that the policy responses to informal settlements, riddled with problems of planning and implementation, have not been a silver bullet to the housing crisis or the growing inequity in South Africa. The courts on the other hand, the Constitutional Court in particular, have attempted to ensure that the rights of informal settlement dwellers are protected.
Author Juana CoetzeeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 564 –582 (2012)More Less
INCOTERMS® reflect the most dominant and consistent commercial customs and practices evident in international commerce. They are regularly updated to keep them in line with changing mercantile practice. However, over the years, several terms were added to represent practices which have not yet developed into mercantile usage or custom. In reaction to the latest revision of the INCOTERMS® rules, which has come into operation on 1 January 2011, one commentator concludes that INCOTERMS® now function as standard contract terms and no longer as mercantile custom or usage. This article addresses the legal nature of INCOTERMS®, with specific reference to the International Chamber of Commerce's ("ICC") revision methodology. In principle, INCOTERMS® function as contract terms. Whether they enjoy an autonomous existence apart from party agreement is a question that has not yet been answered conclusively. There is evidence that courts apply them as international trade usage or custom, especially in the context of article 9 of the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Scholars, however, disagree on whether INCOTERMS®in toto can function as international trade usage, especially when it comes to recently introduced rules. It is submitted that individual rules should not be evaluated in isolation, but that their legal nature should be determined with reference to the compilation as a whole. It is concluded that the more INCOTERMS® are used in a particular trade, they will become known and observed in that trade. In due course they will acquire the force of mercantile usage or custom which can apply independent of party agreement.
Misattributed paternity : should there be a right to reimbursement of maintenance erroneously paid?
[Discussion of Nel v Jonker (A653/2009) 2011 ZAWCHC 5 (17 February 2011)]Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 583 –597 (2012)More Less
A man who paid maintenance because of a false belief that he was a child's biological father may wish to reclaim the amounts paid once he discovers the truth. In the current South African legislation there is no guidance on whether such claims are actionable. Prior to Nel v Jonker (A653/2009) 2011 ZAWCHC 5 (17 February 2011) there was also no reported case authority. In this matter Gamble J held that maintenance reimbursement claims are valid where the requirements of the condictio indebiti can be met. In this article we provide an evaluation of his judgment. We show that the application of the condictio indebiti as required in Nel makes it very difficult for misattributed fathers to succeed. This difficulty is compounded by a position taken in several South African cases that it is better not to jeopardise existing father-child relationships by ordering paternity testing. Drawing on developments elsewhere, we contend that in many instances the risk of harming such relationships is in fact lessened where courts facilitate discovery of the truth and then order maintenance repayments. We suggest that the position established in Nel is inappropriate because it renders it almost impossible for misattributed fathers to succeed with maintenance reimbursement claims. With do-it-yourself paternity test kits becoming less expensive and less intrusive, misattributed paternity disputes will become increasingly more frequent. We therefore propose that in the interests of both misattributed fathers and children the legislature should intervene. It should do so by allowing expressly for reclamation of maintenance erroneously paid, and by setting requirements which are practicable. We suggest some guidelines for such legislation, and also discuss what factors should be considered by courts when disestablished fathers seek reimbursement.
Author Geo QuinotSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 598 –609 (2012)More Less
In the article by MA Muller, "Handling Uncertainty in a Court of Law", published in (2012) 23 Stellenbosch Law Review 370-380, some editorial errors crept in, resulting in the formulae in especially section 6 of the article being incorrect. We apologise to the author and the article is published in full with the corrected formulae on the following pages.
Contemporary Company Law 2 ed, Farouk H.I. Cassim, Maleka Cassim, Rehana Cassim, Richard Jooste, Joanne Shev & Jacqueline Yeats (Eds.) : book reviewSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 610 –613 (2012)More Less
In a recent commentary on the Companies Act 71 of 2008 ("the new Companies Act"), Michael Kuper SC compares the Act to a Ford Edsel rather than the Rolls Royce that we were promised ("Another Look at the Companies Act: Rolls Royce or Ford Edsel" (2012) 2 Corporate Report 3). Of course, even a jalopy can be fixed and made to drive, if we are just provided with some sort of manual ..
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 23, pp 614 –619 (2012)More Less