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- Volume 24, Issue 1, 2013
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 24, Issue 1, 2013
Volume 24, Issue 1, 2013
Author Andrew HutchisonSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 3 –30 (2013)More Less
Most modern contracts are bilateral in nature, implying a mutual exchange of promises in content. This raises the question of when such promises create obligations which can be said to be reciprocal. Furthermore, what remedy will a party have if a reciprocal performance is not forthcoming? This article aims to explore the concept of reciprocity in contracts historically and comparatively to demonstrate its impact on contract law worldwide. This will involve an excursus of the major contract law rules which this principle underlies. The contribution will explore in brief the major problem areas in South Africa (and worldwide) where reciprocity plays a determinative role. The main argument is that reciprocity, in the sense of fairness in exchange, is central to many South African contracts; without it contractual validity may be threatened and enforceability is lost.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 31 –54 (2013)More Less
The intellectual commons or public domain is an important part of intellectual property law scholarship. In this regard it is necessary to examine the origins of the commons, what exactly the intellectual commons is and how the notion of the intellectual commons may be further developed. Especially in the United States of America there are concerns that the intellectual commons is currently being enclosed by extending intellectual property protection to areas of intellectual activity that were previously excluded from propertisation; and by extending intellectual property protection of existing rights. It may be argued that some intellectual products should remain in the commons or revert back to the commons in order to ensure that enough remains so that new intellectual products may be developed based on these existing products. However, there must also be enough of a property-right based incentive in order to ensure continued investment in the creation of new intellectual products. The important question is then, how may these two interests be balanced? This article examines the issues related to the commons in order to provide a framework which future revisions to intellectual property legislation may use as a point of departure to ensure that South African legislation does not encroach on the intellectual commons unduly. Examples from copyright law, patent law and traditional knowledge are used to demonstrate how the intellectual commons and intellectual property statutes interact.
Maccsand in the Constitutional Court : dodging the NEMA issue
[Discussion of Maccsand (Pty) Ltd v City of Cape Town 2012 4 SA 181 (CC)]Author Tracy HumbySource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 55 –72 (2013)More Less
While the Constitutional Court's decision in Maccsand (Pty) Ltd v City of Cape Town 2012 4 SA 181 (CC) has laid down an important principle on the relationship between the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRDA") and the Land Use Planning Ordinance 15 of 1985 ("LUPO"), it avoided dealing with the second prong of this matter - namely the relationship between the MPRDA and the National Environmental Management Act 107 of 1998 ("NEMA"). In dispensing with this issue, this note argues that the court applied law which is not yet in force and failed to properly conceptualise the real legal issue or understand what is at stake. The court's findings on the relationship between the MPRDA and the LUPO nevertheless provide some guidance on the manner in which the relationship between the MPRDA and the NEMA should be managed.
Author Georgia Alida Du PlessisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 73 –92 (2013)More Less
In the South African case S v Mshumpa 2008 1 SACR 126 (E) the court considered a set of facts where a third party had been responsible for the death of an unborn during the 38th week of gestation. It is commonly referred to as a case of feticide. The court held that the common-law crime of murder did not include the unborn and it was the responsibility of the legislature to develop the common law. This article aims to investigate the development of a statutory crime of feticide for the protection of the unborn. Some arguments are given as to why the situation of the unborn is different in cases of feticide than in abortion cases. Furthermore, American, English and Canadian jurisprudence is researched in order to compare it with the South African position to assist the legislature in taking urgent action in furthering South African jurisprudence on feticide.
Circumventing veil piercing : possible delictual liability of a holding company to a creditor of its insolvent subsidiaryAuthor Richard StevensSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 93 –106 (2013)More Less
A holding company often issues a letter of comfort to a creditor of its subsidiary company. The subsidiary company often then defaults on its obligations to that creditor. The courts generally have held that a letter of comfort does not create binding contractual obligations between the holding company and the creditor. This article investigates whether the creditor could hold the holding company liable in delict for the losses that the creditor suffered due to the default of the contractual obligations by the subsidiary company to that creditor. The article specifically considers the element of wrongfulness and whether there could be a legal duty on the holding company not to cause pure economic loss to the creditor of its subsidiary in circumstances where the holding company issued a letter of comfort to the creditor. This article investigates the requirements of a legal duty in cases of pure economic loss as well as the nature of a letter of comfort. The article concludes that a legal duty could be placed on a holding company not to cause pure economic loss to the creditor of its subsidiary depending on the wording of the letter of comfort and without sacrificing the principle of separate juristic personality that exist between the holding company and subsidiary company.
Urgent care removals and access to children's courts : an analysis of the implications of C v Department of Health and Social Development, GautengSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 107 –123 (2013)More Less
Children living in high risk domestic situations sometimes require urgent removals into interim alternative care. These are provided for in the Children's Act 38 of 2005 under the concept of temporary safe care placements. Internationally, it is known that emergency removal decision-making tends to require a complex balancing of countervailing considerations. Severe psychological harm results if children are suddenly and inappropriately removed from parents. Therefore, prompt and independent reviews of emergency removals are essential. Unfortunately, the drafters of the Children's Act failed to provide for such reviews. This led to the High Court finding certain sections of the Act unconstitutional and reading in additional wording requiring reviews by children's courts in Chirindza v Gauteng Department of Health and Social Welfare 2011 3 All SA 625 (GNP). The High Court findings subsequently came before the Constitutional Court for evaluation in terms of section 167(5) of the Constitution of the Republic of South Africa, 1996. The latter court handed down three differing judgments. This article explains and critically analyses these judgments. We show that there are some important lessons for future applicants approaching courts to address legislative incompleteness. We also contend that, while most of the judges in the Constitutional Court supported the best interests of children by confirming a reading in of urgent removal reviews, the law governing such reviews remains incomplete. Without guidance on procedures or substantive aspects, persons undertaking removals are at risk of legal liability. Children's courts have been left in the dark and may resort to meaningless rubberstamping of removal decision-making. We provide some recommendations on how the law should now be further developed as a matter of urgency.
Should teachers have the right to strike? The expedience of declaring the education sector an essential serviceSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 124 –145 (2013)More Less
Concern about the impact of teachers' strikes on the right of children to basic education has led to calls that education should be designated an essential service. The authors argue that this is not feasible as it is not likely that consensus will be reached by the social partners at the National Economic Development and Labour Council ("NEDLAC"). In the event that legislation to this effect is adopted, the limitation on teachers' right to strike will be open to constitutional challenge. In the light of the International Labour Organisation ("ILO")'s narrow definition of essential service and the explicit exclusion of teaching from essential services, such a limitation will in all probability be found to be unconstitutional. Prohibitions on teachers to strike in British Columbia and Germany indicate that teachers do not desist from striking and that the courts are increasingly coming to the aid of teachers who are prohibited from striking. Proposals to minimise the impact of strikes on pupils include public pressure (inter alia by way of public hearings scheduled by the Portfolio Committees on Education) to persuade SADTU to conclude a collective bargaining agreement to limit strikes by teachers. It is proposed that this collective agreement should be to the effect that teachers should neither strike during the four weeks leading up to the exams nor during the period while pupils are writing their exams. It is proposed that Matric teachers should not strike at all. An amendment to section 20(1)(a) of the South African Schools Act 84 of 1996 would give governing bodies of schools the power to negotiate with teachers at a particular school on measures to limit the impact of an impending strike on pupils. Proposed amendments to the LRA include a second round of conciliation by the Director of the CCMA, should it be in a public interest to prevent a strike. This measure could be instrumental in limiting strikes in the education sector.
Personhood : proving the significance of the born-alive rule with reference to medical knowledge of foetal viabilityAuthor Camilla PicklesSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 146 –164 (2013)More Less
In 2010 an academic publication called for the common law born-alive rule to be substituted by a definition of personhood that includes an unborn but viable foetus. It was the author's submission that foetal viability occurs at 24 weeks' gestation. This assertion represents a wider legal tendency to attribute foetal survivability to a particular gestational week. An ambiguous legal concept of foetal viability has developed because different gestational weeks (which are all said to represent the point of viability) are being applied in different areas of law. This is problematic because it is not clear when the legal implications of personhood should benefit the unborn. Consequently, this article turns to medical knowledge and looks at the clinical definition of foetal viability in order to determine whether foetal viability can be legitimately applied in law for purposes of extending personhood. Research indicates that determining the viability of a foetus requires an individualised approach towards each pregnancy. This construction of viability moves beyond gestational age and includes the consideration of a wide range of foetal related variables, and medical and sociocultural variables. At best, foetal viability is a clinical estimate that can only be verified upon birth. Due to the fact that personhood has such far reaching legal implications, it is important that definitive demarcations are provided as to exactly when foetal viability occurs. However, medical science cannot provide these definitive lines because there are too many uncertain elements present when determining foetal viability. Thus personhood cannot be subject to the condition of foetal viability since this approach to personhood would require a "patient-specific" confirmation of viability for each and every pregnancy and this is unrealistic if not impossible.
Purging mortgage default : comments on the right to reinstate credit agreements in terms of the National Credit ActAuthor Reghard BritsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 165 –184 (2013)More Less
Section 129(3) and (4) of the National Credit Act provides debtors who are in default with their credit agreements with the right to reinstate such agreements by paying the actual amounts that are overdue as well as permitted default charges and enforcement costs. Particularly in the mortgage foreclosure context, this mechanism provides relief for credit consumers and it might just be the last opportunity for mortgage debtors to save their homes. Mortgagees are traditionally entitled to refuse the late payment of home loan instalments and therefore to continue with foreclosure, the result being sale in execution of the home. However, the Act has changed this state of affairs and now allows debtors to prevent and even reverse the creditor's election to foreclose by complying with the requirements for reinstatement. Therefore, the operation of acceleration clauses is now qualified by the principles of reinstatement. It is possible to reinstate the mortgage agreement after judgment has been granted, and even after the property has been declared specially executable and attached. However, from the point that the property is sold at the auction, reinstatement is no longer possible. The result of reinstatement is that the attached property is released from the execution process and returned to the debtor. The credit agreement will continue to operate as it did prior to default.
Author P.F. SmithSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 185 –202 (2013)More Less
In this contribution, the English commonhold system, which enables the development of freehold units in a multi-unit development, is critically re-visited. Provision is made for the development of freehold apartments on land with a registered commonhold title. At the date of registration, a management body for the scheme, the commonhold association, must be in place. Each purchaser of a unit in the relevant building obtains freehold property on purchase. The property and management of the building housing the units and of the common areas of the scheme are, by contrast, withheld from unit holders and vested in the commonhold association, which is a special kind of body corporate. Since the coming into force of the English legislation, a set of defects have been detected. This contribution re-assesses the main problem areas and makes a number of reform suggestions drawing on material from a number of jurisdictions, notably South Africa, France and Germany. Avoidable problems are likely to arise with any conversions to commonhold from the predominant English long lease system, owing to the narrowness of the conversion rules. The manner in which ownership of units and the common parts are regulated, a key aspect in any such system, merits re-assessment. It seems that here the English rules survive comparison. The rules pertaining to constitution of the commonhold association fail to provide sufficient safeguards for unpaid scheme creditors. The rules relating leasing of commonhold units seem inadequately thought out. There is a conspicuous absence of real remedies for non-payment of assessments by unit holders. The effect of these and other aspects may help to explain why commonhold has had a limited numerical impact. The time for a second generation reforming statute may have come.
An analysis of what constitutes royalty income for treaty purposes : a survey of the origin and evolution of the OECD Model Tax Convention's Royalty ProvisionSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 203 –228 (2013)More Less
One of the primary reasons for the occurrence of double taxation on cross-border transactions is the fact that all countries do not tax income in the same manner. Double taxation has led to a proliferation of agreements between States to prevent or reduce juridical double tax as an inhibiting factor to economic activity.
The ever-increasing importance of intangible assets, and the creation of value through their development and use, was highlighted by an OECD report in 2007. Uncertainty often exists regarding what constitutes a royalty payment.
The objective of the article is to elucidate the use of the term "royalty" and analyse its origin and development throughout the various versions of the OECD Model Tax Conventions ("MTC"s) and earlier versions prior to the establishment of the OECD. South African and international case law is briefly considered, while the contents of the various OECD MTCs are thoroughly scrutinised to determine whether there has been significant changes in the definition and treatment of royalty income by MTCs. It has been established that the modern definition of royalties originated from the 1928 League of Nations Draft Models ("Geneva Model") and evolved throughout successive MTCs, with the first issued by the OECD in 1961 and the latest in 2010.
The article concludes that there has been no significant change to the definition of royalties and that the Commentaries to the OECD MTCs have been greatly expanded upon, in order to provide more certainty regarding the use of the term.
Socio-economic Rights: Adjudication under a Transformative Constitution, S. Liebenberg : book reviewAuthor Nicholas Wasonga OragoSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 229 –232 (2013)More Less
In her book - Socio-Economic Rights: Adjudication under a Transformative Constitution - Professor Sandra Liebenberg undertakes a meticulous and masterful exposition, as well as an incisive and thoughtful critique, of the socio-economic rights ("SER"s) jurisprudence of the South African courts. For the usual generalist reader, this book is an intimidating literary giant, towering at over 539 pages. Yet the substantive comprehensiveness with which it tackles the myriad concerns and challenges that have so far bedevilled the judicial adjudication of SERs in the South African context is unparalleled by any previous single literary work on the subject. Further, the diplomatic language that populates the entire breadth of the book is iconic; the very hallmark of the literary skills of the author as is reflected in all her publications so far. Liebenberg tactfully, and almost apologetically, deals substantively and eloquently with the controversial and divisive challenges that have bedevilled the implementation of SERs in South Africa, especially the SERs jurisprudence of the South African courts, fleshing out the substantive issues without unduly inflaming passions.
Author Antonie GildenhuysSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 232 –235 (2013)More Less
By means of this book, Jeannie van Wyk made a significant contribution to legal writing in South Africa. Although a first edition thereof appeared in 1999, the present book is largely a new work. It is very well written, easily understandable, and will be useful to a wide variety of readers.