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- Volume 24, Issue 3, 2013
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 24, Issue 3, 2013
Volume 24, Issue 3, 2013
Author Mogoeng Wa MogoengSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 393 –405 (2013)More Less
When all others fail in their obligations to give practical expression to the rule of law, human rights and the constitutional aspirations of all the people in any democracy, that constitutional democracy would be safe - provided a truly independent body of judges, loyal to the oath of office or solemn affirmation, is in place and ready to administer blind justice to the aggrieved.
Government by its very nature is divided into three branches. The Executive, the Legislature and the Judiciary. As you know, the three tiers of the Executive government are led by the President. Each tier enjoys real autonomy beginning with the national and provincial governments to the smallest municipality you can imagine. Their success or failure is entirely or largely in their hands. Similarly, the Legislative branch of government is led by the Speaker and the Chairperson of the National Council of Provinces at national levels, by Speakers at provincial levels, again by Speakers at local government level. They are also institutionally independent.
These two branches of government have their own vote accounts, they are vested with the power to determine the administrative support they need, to work out job descriptions and salary levels for their personnel and to decide which projects to embark on according to their own order of priority. But the same cannot be said of the South African Judiciary.
Author Richard RachlitzSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 406 –429 (2013)More Less
Knowing who owns a company is essential for a multitude of reasons. It enables investors to carry out transactions in an informed way and to look into corporate governance matters involving large-scale shareholders. It enables banks, other businesses and individuals who contract with a company to establish who actually controls that company. And it enables the competent authorities, as well as the general public, to investigate the use of companies for illicit purposes, such as money laundering, tax evasion, corruption or bribery. On the other hand, mandatory company ownership disclosure raises questions about privacy, wealth distribution and, in some instances, even personal security. Accordingly, mandatory disclosure of company ownership is, and has always been, a politically sensitive issue.
This article seeks to address two central questions: How does the law determine who actually owns a company, and how and to what extent does it impose duties of disclosure on these persons and provide for their enforcement? Regarding the first question, it is argued that South African company law distinguishes between three different forms of company owners - those who are entitled to dispose of any shares ("owners" in the narrow sense of the word), those who are entitled to exercise any shareholder rights vis-à-vis the company ("shareholders"), and those who can exercise ultimate effective control over a company, either personally themselves as "owners" or "shareholders", or through someone else ("holders of a beneficial interest"). Regarding the second question, the mechanisms of disclosure of these positions are analysed and evaluated. It is argued that the exact scope of disclosure is far from certain. Moreover, due to a lack of enforcement measures, compliance with substantial parts of the law of company ownership disclosure seems to be de facto at the discretion of the owners involved.
Author Eric T. FreyfogleSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 430 –454 (2013)More Less
This article begins with claims that private property should promote human flourishing and constitutional ideals and that the transformation of property law now needed calls for a paradigm-shift in thinking about the institution, beginning with a major revision of the "rights paradigm". Private ownership in obvious ways benefits an owner. But as explained, the links between private rights and human flourishing are complex, implicating not just owners but neighbours, surrounding communities, the landless, future generations, and other life forms. The recognition of private rights can both expand and curtail human flourishing. As for human flourishing, it is equally complex in that it is affected by many factors going beyond physical needs and consideration. The reform of property rights cannot fairly look only at how property rights benefit an owner, nor can property rights be justified on that basis. Property rights are created by law and involve the use of state power to protect rights by curtailing the liberties of non-owners and others. The only sound moral justification of this use of coercive power - this use of state power to help owners control and dominate others - rests in the ways a well-designed property regime can foster the welfare of nearly everyone, owners and non-owners alike. Law thus should not vest an owner with a power that does not, on balance, promote overall human flourishing. Inherited ways of thinking about private property cloud these realities and distort inquiries into property's origins and moral and practical consequences. Much of this thought is best wiped away with discussion begun from a new place, from an express recognition of private property as an evolving, socially created, morally complex institution that can both promote and undercut human flourishing, an institution that must be carefully calibrated to maintain its moral legitimacy and maximise its social benefits.
Transformation, tension and transgression : reflections on the culture and ideology of South African legal educationAuthor Joel M. ModiriSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 455 –479 (2013)More Less
This article enquires into and joins the critique of the current state of legal education in South Africa against the backdrop of a post-modern, post-colonial and post-apartheid context. In response to current debates on the state of legal education and the quality of the graduates it produces, the author argues that the problem goes beyond the failure to provide corporate law firms with appropriately skilled and qualified graduates but also has implications for substantive democracy, active political citizenship, transformation, freedom, justice, and ethics. Through a survey of select legal education literature in South Africa and abroad, the author identifies the central problem as being the reliance by most South African law teachers on the dominant paradigm of traditional (or black-letter) legal education. Following the writings of Duncan Kennedy and Michel Foucault, this paradigm of traditional education is shown as being not only pedagogically ineffective but also politically corrupt and ideologically conservative. While failing to impart critical thinking skills to law students, it also works to co-opt them into the service of hierarchy and hegemony and functions to discipline them into docility, thereby legitimating the conservative legal culture. As an alternative, the author proposes the turn towards a more critical, engaged approach to legal education, drawing in particular from critical legal studies ("CLS") and from the critical liberatory pedagogy of Paulo Freire and bell hooks. By following a more critical direction, and by enabling students to think critically about law, to question and to transgress, legal education can serve as a practice of freedom. The broad aim of the article then is to put forward a set of ideas contemplating a legal education that is otherwise, that brings something else into the law classroom such that it might serve as the meeting point between law and justice.
Author A.L. StanderSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 480 –509 (2013)More Less
This article addresses the effects of insolvency in arbitral proceedings. The interaction between insolvency law and the law of arbitration is a neglected topic and literature on the subject is scarce. In this article three situations are distinguished and discussed. The first exposition merely reflects on the effect of liquidation on an arbitration clause recorded in a contract between an insolvent, liquidated company and another. Secondly the situation is discussed where an arbitration is already in process when liquidation takes place. In the third instance the position is examined where an arbitration award has been made prior to the liquidation. Suggestions as to how national courts should apply the law in each of these situations are provided. In the second part of the article the effect of an international arbitration is investigated. As will be seen, the interaction between the insolvency law and arbitration law is complex, in particular in an international context. In general it can be said that neither of the fields provides appropriate answers and useful guidelines where these two fields intersect. Suggestions are nevertheless presented in an attempt to find a fair and just solution for every party concerned.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 510 –527 (2013)More Less
Legal writing as a subject has been largely absent from the South African undergraduate LLB curriculum, despite the fact that every legal practitioner needs to be accomplished in the art of legal writing in some or other form. Literature on current trends in foreign schools of law reveals that a complete or stand-alone course in legal writing is, as a standard procedure, included in the law degree programme. Even though some South African law faculties are yet to respond to this trend, others - including the Faculty of Law at the University of the Free State ("UFS") - have slowly started to include aspects of a potential legal writing course in the broad rubric of a subject known at the UFS as Legal Practice, with some positive results. However, in teaching these courses, it has become apparent that - apart from "practical skills" modules - traditional theory subjects could also play a crucial role in achieving the ideals of teaching effective advocacy in a holistic manner. The debate on how this may be achieved is however noticeably absent from the academic discourse on the general restructuring and transformation of the LLB curriculum. The steps taken by the UFS Faculty of Law to address the teaching vacuum in respect of legal writing and other critical skills are presented in this article. It is aimed at stimulating debate among South African legal academics on the establishment of legal writing courses as core modules in the LLB curriculum. It concludes that, in view of the general under-preparedness of students to study law, the "staggered" introduction of components of legal writing into the LLB curriculum can possibly provide some solutions.
Author Yvonne JoosteSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 528 –537 (2013)More Less
In this note, the author reflects on the subjectivity of women through the lens of Jacques Rancière's formulation of the "distribution of the sensible". The author discusses the French revolutionary woman, Olympe de Gouges, a reading of the character of Lucy in JM Coetzee's Disgrace as well as the character of Philida in Andre P Brink's work Philida. These characters and events are analysed as a way of calling for the interrogation of orders of sensibility, intelligibility and communicability. It is suggested that a Rancièrian reading of characters and events discloses paradoxical, precarious subjectivities that renegotiate material and sensible contexts. The concern of the piece lies with the capacity and subjectivity to break with established roles and identifications and by assuming equality in order to recast conservative symbolic orders thereby opening up the possibility of alternative spaces, capacities and ways of being. The author suggests refocusing from political ends and results to moments within which the sensible is redistributed.
A comparative perspective on the application of domestic labour legislation in international employment disputesSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 538 –561 (2013)More Less
An analysis of different methods of dealing with the application of domestic legislation in international employment disputes in the chosen jurisdictions indicates that two broad approaches are followed, namely a private international law approach and an interpretive approach. It is recommended that South Africa should follow a combination of these approaches, as is done in Britain, instead of the strict interpretive approach followed currently. This would entail that in deciding whether legislation is applicable, the court should take connecting factors into consideration. More specifically, it is further recommended that the definition of "employee" in the Code of Good Practice: Who is an Employee? be amended to provide guidelines to the Labour Court and the CCMA regarding connecting factors.
Author H.H. StoopSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 562 –582 (2013)More Less
There is broad consensus that 21st century corporations will have no choice but to acknowledge the importance of sustainable corporate behaviour. The social and ethics committee introduced by the South African Companies Act 71 of 2008 is one of the latest local developments reflecting this gradual change in the corporate landscape. This article considers mechanisms employed to regulate corporate social responsibility in general, focusing on companies' responsibilities as far as environmental matters are concerned. It specifically debates whether a mandatory committee of the board to deal with sustainability is an appropriate solution and, if so, whether such a mandate should be statutory. In this context South Africa's mandatory social and ethics committee will be evaluated in an attempt to predict whether it will play a viable role in protecting South Africa's natural heritage.
Author Marion SinclairSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 583 –600 (2013)More Less
The protection of children is a key objective of United Nations conventions and State legislation, and the Constitution of the Republic of South Africa, 1996 itself prioritises the protection and welfare of children in South African society. In many high risk situations children are protected by appropriate and proactive legislation. In one key area, however, the South African legislation is failing South African children and exhibiting not only a blatant disregard for their protection in a particularly dangerous context, but also limiting protection for these most vulnerable persons on the basis of age. This is in the arena of seatbelt legislation. The argument made in this paper is that Regulation 213 promulgated under the National Road Traffic Act 93 of 1996 represents a direct breach not only of the International Convention on the Rights of the Child and the South African Children's Act 38 of 2005, but is also a direct breach of a number of rights enshrined in the Bill of Rights. These include the right to life, to freedom and security of the person, and to equality. As it stands the regulation creates a system in which adults are afforded better legal protection than children, and where it is lawful and acceptable for young children under the age of three years to be transported in a vehicle without the protection of a seatbelt or child restraint system. Given that South African children face some of the highest risks of injury and premature mortality through traffic collisions in the world, this breach has a direct and immediate impact on the safety of South African children.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 601 –617 (2013)More Less
South African universities need to envision a new idea of (university) education in order to support and promote the transformation of this country's society. Congruent to this, universities are beginning to (and should continue to) create definitions of graduateness that embody this ideal. Defining graduateness is an attempt to quantify the qualities and attributes with which graduates will exit their institution and what it is that makes graduates prepared for the society they will serve.
This article explores the notion of graduateness and how developing definitions of graduateness for South African universities can contribute to re-imagining our higher education system and, consequently, to transforming South Africa. The need for transformation within the greater South African society is discussed. Further, the transformation of individuals is essential to the realisation of the societal transformation that is required and facilitated by our constitutional dispensation. Individual transformation is possible through transformative education and, more specifically, transformative legal education. The skills, properties and attributes commonly encompassed in a definition of graduateness are provided and existing South African definitions of graduateness are scrutinised to determine whether the idealised graduates are envisioned as transformed persons. The article concludes by providing recommendations for the development of new definitions of graduateness, highlighting how transformative (legal) education can assist in the development of the transformed individual. It is postulated that the transformed individual should be an attribute of graduateness at all universities in South Africa.
Author Anne LouwSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 618 –637 (2013)More Less
Child-rearing in South Africa has long been characterised by the presence of multiple care-givers in the lives of children. With the importance of the role that the extended family plays in African culture, it is not surprising that grandparents are the single most important category of caregivers, besides the actual biological parents of the child, to assume the responsibility of caring and raising children in South Africa. Despite proposals to afford grandparents special status in law, no provisions to that effect have been enacted. The article investigates whether the continued lack of legal recognition afforded to grandparents can be justified in the light of the changed legal landscape found in South Africa. Consideration is given to the impact of a child's constitutional right to "family care" as well as the growing legal recognition of de facto care-givers and the so-called "multiple parenting scheme" envisaged by the Children's Act 38 of 2005. The generally held belief that to disregard a child's attachment to his or her grandparents would necessarily run contrary to the child's best interests, is also questioned. For this purpose the article discusses relevant case law in South Africa and refers to empirical research undertaken in the United Kingdom. The article ultimately concludes that the law's current treatment of grandparents seems to be satisfactory. The Children's Act would seem to be flexible enough to protect the attachment between children and their grandparents when threatened. However, the judicial protection of the attachment remains subject to the best interests of the child. The fact that grandparents are not automatically vested with rights as far as their grandchildren are concerned, would seem to support the view that the law should be slow to make general assumptions about the role that grandparents play in the lives of their grandchildren.
Author Helen ScottSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 638 –643 (2013)More Less
The law of enrichment has a strong claim to be counted among the most conservative areas of South African private law. By conservative I do not mean restrictive or cautious in permitting the restitution of enrichment, although that is true also. Rather, I mean that the law of enrichment adheres remarkably closely to its Roman-law roots; there is surprisingly little difference between the law preserved in Justinian's Corpus Juris and that reflected in the modern law reports. Even so, this is not necessarily a criticism: after all, there are parts of the modern law of delict which likewise closely resemble the Roman law but which have nevertheless been held to give adequate effect to the fundamental rights enshrined in the Constitution of the Republic of South Africa, 1996 ("the Constitution"). Yet those parts of delict of which this is true - the actio iniuriarum in particular - are also among the most sophisticated portions of Roman private law. This is not true of the Roman law of enrichment.
Author Elmarie Van der SchyffSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 643 –645 (2013)More Less
With the publication of this monograph, Hanri Mostert contributed significantly to the relatively limited collection of legal manuscripts that deals with Mineral Law in South Africa. It is unique in its kind in the sense that this is not a practitioner's manual or a section-by-section analysis of the relevant legislation. It is an academic work of quality through which the principles and policies that underpinned preceding mineral law regimes are juxtaposed with the regime introduced by the Mineral and Petroleum Resources Development Act 28 of 2002. That this book will not gather dust on library shelves is apparent from the fact that it was extensively referred to by the Supreme Court of Appeal in the decision given in Minister of Minerals and Energy v Agri SA 2012 5 SA 1 (SCA), even before its official publication.
Author A.B. WesselsSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 645 –647 (2013)More Less
According to its preface, the aim of this book is to provide a general and comprehensive introduction to the theory and practice of the law of damages, with a principal focus on affording practitioners, lecturers and students a systematic and analytical discussion of the practical principles of the law of damages.
Environmental Law and Policy in Namibia - Towards making Africa the Tree of Life, O.C. Ruppel & K. Ruppel-Schlichting (Eds.) : book reviewAuthor Willemien Du PlessisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 648 –650 (2013)More Less
Books dealing with environmental law in Africa and especially in specific African countries (with the exception of South Africa) are scarce. The first and second editions of Ruppel and Ruppel-Schlichting's book Environmental Law and Policy in Namibia ("the 2011 edition") and Environmental Law and Policy - Towards making Africa the Tree of Life ("the 2013 edition") are valuable contributions to the library of works on environmental law in Africa. The books are available (open access) on the internet (http://www.environment-namibia.net/) where readers may also access all the important environmental laws and policies of Namibia.
Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 24, pp 651 –656 (2013)More Less