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- Volume 25, Issue 1, 2014
Stellenbosch Law Review = Stellenbosch Regstydskrif - Volume 25, Issue 1, 2014
Volume 25, Issue 1, 2014
Author D.M. DavisSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 3 –14 (2014)More Less
In 1921, at the age of 45, Morti Malherbe succeeded HHA Fagan (later to become Chief Justice of South Africa) as Professor in the Law Faculty of the University of Stellenbosch, which had been established only one year previously and which was then the first law faculty in which the medium of instruction was Afrikaans. Malherbe continued to teach until the end of 1954 when he was 80. Writing in 1964, one of Malherbe's students, Professor Wouter de Vos (who was also my teacher) paid tribute to the contribution that Malherbe had made to the law faculty at Stellenbosch. In particular, he emphasised that Malherbe's approach was not primarily designed to produce practitioners possessed with ready practical knowledge but was rather to train jurists who would be armed with clear legal principles and capable of analytical thought. His inspirational teaching encouraged a remarkable number of talented people to continue in the field of higher research, which research unquestionably developed South African private law.
Author Jonathan CampbellSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 15 –33 (2014)More Less
South African law faculties have a dual function: to produce law graduates who require the LLB qualification for entry to the profession; and a broader, educative, academic function that emphasises personal and professional development, intellectual endeavour, and strives to produce well-rounded law graduates. Likewise, there are two major stakeholders in the law faculty: the profession, and the university of which the law faculty forms part. How then do law academics regard their role? Again, there is a dual purpose: some academics with a practice background see the primary (even sole) outcome of legal education as the production of graduates ready for legal practice; other academics prefer to emphasise the academic aspects of legal education, including generic academic skills, with practical application to follow later during vocational training. Most law academics today (with rare exceptions) would probably concede and accept these dual functions, which quite naturally co-exist in a pervasive tension, which should be expected. This article considers the central tenets of these two imperatives, and argues that both are crucial for legal education, and are not mutually exclusive. The LLB is the statutory requirement for entry to legal practice, yet over-emphasis on qualification for practice in a truncated four-year programme has failed LLB graduates and the profession. The profession needs better educated, higher quality law graduates who are able to read, write and speak well, and who meet other important graduate attributes such as a capacity for critical analysis. A broader, formative legal education with a strong skills focus will better prepare graduates for practice in the private and public sector, requiring a high level of competence at admission and graduation stages to be able to complete it.
Author Jeannie Van WykSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 34 –54 (2014)More Less
The possibility of exploiting vast shale gas deposits in the Karoo Basin in South Africa by using a mining technique known as hydraulic fracturing, or "fracking", became a reality during 2008. The granting of a number of applications for licences to extract gas was met with stiff resistance on the one hand and enthusiastic reception on the other. All the uncertainties and controversies caused the Department of Mineral Resources to place a moratorium on licences and setting up a task team to get a better perspective on fracking through the publication of the Report on Investigation of Hydraulic Fracturing in the Karoo Basin of South Africa (2012). Since fracking has the potential to detrimentally affect the environment and water resources the main focus of the article is to indicate which permits, licences or authorisations are required before fracking can commence. Core components of the different approval processes are procedures for both public participation and the submission of some form of environmental assessment, programme or report. Prefacing this discussion is a brief examination of what fracking is, where shale gas deposits exist in South Africa and what the extent of such deposits is.
Sales in execution of immovable property, the rules of court and the Consumer Protection Act regulations : back to the drawing board?Source: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 55 –71 (2014)More Less
Banks often lend money to prospective home owners, which loans are secured by mortgage bonds. When owners default on payments, the banks foreclose by taking judgment against the owners, and selling the properties in execution by public auction. The Rules of the High Court and the Magistrate's Court Rules regulate these auctions in detail. In 2008, the Consumer Protection Act 68 of 2008 was enacted. Section 45 governs auctions, and for purposes of section 45 and the regulations promulgated under it, "auction" includes a sale in execution pursuant to a court order. In this article, we show that the Consumer Protection Act, read with the Regulations, does not make sense with regard to sales in execution. It seems clear that the Regulations aim to protect bidders at a normal auction, especially the provisions that aim to regulate the participation of owners or their agents as bidders and the requirement of the notice of a reserve price. This is already covered under the Uniform Rules of Court. Any other reading of the Regulations leads to absurdities. Based on this finding, we propose that section 45 of the Consumer Protection Act in general, and the Regulations in particular, need to be rethought.
Author Zsa-Zsa Temmers BoggenpoelSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 72 –98 (2014)More Less
The new constitutional dispensation brought with it (inevitably) large scale deviations in the way remedies in the context of evictions are applied in modern South African law. This article examines how the sources of law relate to one another in the search for suitable remedies for infringement of constitutional rights. Specifically in eviction law, it is clear that the relationship between the sources of law is uncertain for purposes of finding a remedy in the case of infringements of section 26(3) of the Constitution of the Republic of South Africa, 1996 ("the Constitution"). The evictee arguably has the possibility of two coinciding remedies, namely the mandament van spolie and a constitutional remedy under section 26(3). The article shows that both these remedies would in principle provide the same type of remedial content in the sense of ensuring that repossession takes place (thereby reversing the illegal eviction) so that the occupiers are (temporarily) placed in the position they were in prior to the illegal eviction (or dispossession) and the merits of the dispute can be decided in a subsequent eviction application. Nonetheless, it is argued that in order to ensure the types of decisions that give full effect to the rights as envisaged by the Constitution, courts should not be too quick to discard of the possibility that the common-law remedy could be invoked in the context of eviction. If the need arises to reconsider the common-law remedies in light of the Constitution (and to develop them in line with the Constitution) courts are not able to shy away from their obligation in terms of section 39(2).
Author Anton Van der LindeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 99 –115 (2014)More Less
This article addresses the nature of a bequest in a will to a beneficiary of a "business concern together with all its assets and liabilities" in view of the facts in Gradus v Sport Helicopters also known as Sport Aviation (19879/2008) 2012 ZAWCHC 365 (28 November 2012) SAFLII http://www.saflii.org/za/cases/ZAWCHC/2012/365.html. In the course of transporting passengers in terms of the business of Sports Aviation, a helicopter crashed. Soon after the accident the owner of the business died and bequeathed to his son ("the beneficiary") "the business concern known as Sports Aviation together with all its assets and liabilities". Two years later, passengers involved in the accident issued summons. The action was brought against the beneficiary. The question before the court was whether the beneficiary inherited the liability arising from the helicopter accident prior to the testator's death, or whether the deceased estate bore liability. Although the court found adiation of the benefit by the beneficiary not to have taken place, the article addresses some related issues, such as the possible impression that the testator bequeathed liabilities as such. As a matter of general interest the author also pursues some arguments or defences available to the beneficiary should the court indeed have found that he adiated the benefit. The conclusion is reached that the bequest above, arguably, constitutes a modus which is in itself a valid bequest. It is, however, argued that adiation by a beneficiary of the benefit (a "sole proprietorship") immediately upon the death of the testator is seemingly not possible since the (business) assets were subject to sale if there were to be insufficient funds in the estate (of the deceased) to pay the estate debts or to cover cash legacies. The probable intention of the testator when making such a bequest and the possible meaning of the word "liabilities" are investigated. Applicable presumptions, the issue of adiation "in excusable ignorance of rights" and the question whether the action for pain and suffering is passively transmissible, are briefly considered.
Author B.V. SladeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 116 –125 (2014)More Less
In Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP) ("Harvey") the High Court had to decide whether it was competent to order the re-transfer of expropriated property to the previous owner when the purpose for which the property was expropriated could not be realised. The court refused to order the re-transfer of the property due to the absence of legislation that authorises the Court to re-transfer expropriated property upon the non-realisation of the purpose of the expropriation. In March 2013, a draft Expropriation Bill was released for public comment. This note shows that the Expropriation Bill, if passed into law, does not address the issue that was present in Harvey, but only allows for the re-transfer of previously expropriated property in very limited circumstances. Since the Expropriation Bill does not effectively address the issue that was present in Harvey, recommendations are made that should resolve the issue that was present in that decision. The main objective of the amending provisions should be to indicate the nature of the right of re-transfer, the persons entitled to claim re-transfer, the time-frame within which the expropriated owner can reclaim the property upon non-implementation of the purpose, setting up a framework for calculating the amount that has to be repaid, as well as the circumstances under which the state would not be required to re-transfer the property to the previous owner. Including detailed legislation that effectively resolves the issue in Harvey v Umhlatuze Municipality, the state would be prevented from changing the purpose for which expropriated property is used at its own discretion. It would also prevent the state from using a valid public purpose as a smokescreen to use the property for a different purpose after the property has been expropriated.
Author Hanneretha KrugerSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 126 –142 (2014)More Less
Child-headed households are recognised as an independent family form in the Children's Act 38 of 2005, provided that this is in the best interests of all the children living in the household. This step by the South African legislator, hailed by some child law scholars as groundbreaking, was severely criticised by others. This criticism is understandable in view of the alarming projections in the early 2000s of the number of children who were expected to be orphaned as a result of the AIDS epidemic. The starting point of this contribution is an important article published by Helen Meintjies and Sonja Giese in 2006 ("Spinning the Epidemic: The Making of Mythologies of Orphanhood in the Context of AIDS" (2006) 13 Childhood 407). In this article the authors discuss data collected from a qualitative research project that showed the questionability of a singular focus on orphanhood in HIV/AIDS discourse and the resultant one-dimensional view of the real impact of the AIDS pandemic on children. They indicate that this singular focus on orphanhood masks the true vulnerabilities of children, particularly poverty. The findings they discuss were confirmed by larger-scale quantitative studies at the time. This contribution discusses and emphasises the important findings of Meintjies and Giese. It also illustrates that more recent quantitative studies confirm their qualitative findings. The conclusion is reached that government responses that address the needs of orphans to the exclusion of all other vulnerable children, are inappropriate. The importance of focusing government resources on poverty alleviation for all vulnerable children, including orphans and children living in child-headed households, is highlighted.
Tenure security and farmland: will recent policy and legislative developments improve the plight of rural dwellers?Author Priviledge DhliwayoSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 143 –159 (2014)More Less
Twenty years since the government embarked on an all-encompassing land reform programme, tenure security on white-owned commercial farmland is generally still lacking. This led the government to review its policy and legislative measures on tenure reform, particularly tenure security on farmland, with the aim to improve tenure security. The Draft Tenure Security Policy ("Draft Policy") and Draft Land Tenure Security Bill were published in 2010. This article examines the government's obligation to improve tenure security, in particular relating to rural dwellers and farm workers. In this regard the article focuses specifically on the shortcomings of the existing policy and legislative measures in order to highlight the possible impact of the Draft Policy and Bill in this context. The article questions whether the Draft Policy and Bill in its present format are suitable to address the challenges on farmland in relation to tenure security. In this regard, two options are explored, namely (i) whether overhauling the whole tenure system on farmland will be necessary to address tenure issues; or (ii) whether amending the Extension of Security of Tenure Act 62 of 1997 ("ESTA") and the Land Reform (Labour Tenants) Act 3 of 1996 ("LTA") would be more appropriate. Due to the continued existing shortcomings linked to capacity and implementation, as well as the lacunae between the Draft Policy and Bill, it seems as if an overhaul of the whole tenure system on farmland would not be a feasible solution. Instead, apart from amending and improving ESTA and the LTA, specific proactive conduct from the government and other role players is required. Institutional capacity building and adequate funding are further requisites to ensure effective implementation of legislation and tenure reform measures.
Defining the limits of the common-law, South African and European privilege against self-incriminationAuthor C. TheophilopoulosSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 160 –186 (2014)More Less
The privilege against self-incrimination is a fundamental first generation procedural right of the Anglo-American adversarial system. Its origin is to be found some 700 years ago in the political-legal struggle for supremacy between the canon law prerogative courts of the English monarch and the indigenous common-law courts. Together with its corollary principle, the right to silence, the privilege has had a significant jurisprudential influence on the procedural law of all western systems of justice. The primary purpose of this article is to make a comparative study of the privilege in major commonwealth jurisdictions such as England, Australia, Canada and South Africa in order to explain the nature of the common-law and statutory privilege, and to expose the jurisdictional variations in the privilege's application. A secondary purpose is to contrast the common-law privilege with that of the continental privilege defined in article 6 of the European Convention on Human Rights, and to identify unique principles of the common-law and European privilege which may be successfully incorporated into the South African privilege. An incidental purpose of the article is to comprehensively explain the principal requirements of the privilege, thereby adding to the corpus of knowledge about the South African privilege which has previously been treated in a somewhat cursory fashion by most scholarly works and court decisions.
Local government indigent policies in the pursuit of social justice in South Africa through the lenses of FraserAuthor Oliver FuoSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 187 –208 (2014)More Less
The Constitution of the Republic of South Africa, 1996 is committed to addressing the injustices of the past and to establishing a society based on social justice. This constitutional commitment is now firmly rooted both in the vision of transformative constitutionalism and the constitutional obligation on government to promote sustainable development. Scholars and jurists agree that social justice is primarily concerned with the eradication of poverty and extreme forms of inequalities in order to ensure that impoverished people have the basic needs required to function as true equals in socio-political life. The constitutional commitment to pursue social justice translates into a mandate which must be realised by the government of South Africa. As a co-responsible sphere of government, scholars and other experts share the view that local government is equally obliged to contribute towards the pursuit of social justice. The purpose of this article is to explore and critically investigate the relevance and potential of local government indigent policies in contributing towards the pursuit of social justice in South Africa through the lenses of Fraser's theory of social justice based on "participatory parity". Based on benchmarks distilled from Fraser's "affirmative" policy reform proposals, this article argues, inter alia, that, although the framework of local government indigent policies incorporates features that could enable municipalities to contribute towards advancing social justice in South Africa, their inability to adequately address the actual needs of impoverished people amounts to a denial of social recognition that is inimical to the pursuit of social justice.
Author Sope Williams-ElegbeSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 209 –224 (2014)More Less
Most of the countries in sub-Saharan Africa have undergone some form of public procurement reform in the last two decades. This reform usually takes the form of the passage of new procurement regulation, which is usually based on the UNCITRAL model law as well as the creation of new institutions or the strengthening of existing ones. In addition, procurement reform may be accompanied by capacity building measures directed at the professionalisation of the procurement cadre and the enforcement of a remedial system where there are breaches of procurement regulation. Despite the extensive efforts directed at procurement reform, in some countries, the reformed system does not always yield the desired results in terms of more efficient, transparent and effective procurement. This research examines some of the factors that may undermine public procurement reform in Africa, using South Africa and Nigeria as case studies and concludes that procurement reform in the 21st century may need to be considered from a more holistic perspective if it is to deliver an adequate, modern and well-functioning procurement system, improve public sector governance and accountability and aid socio-economic development through prudent public spending.
The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa's Basic Law, S. Woolman : book reviewAuthor Henk BothaSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 225 –229 (2014)More Less
Stu Woolman's new book is an ambitious work, which expounds a theory of constitutionalism which breaks with traditional understandings of the self, the social and constitutional law, and seeks to reconceive them in a number of ways. This it does by drawing on a wide variety of scientific fields, theoretical endeavours, analogies and metaphors. To mention but a few examples: global neuronal workspace theory and experimental philosophy are enlisted to problematise and point beyond metaphysical conceptions of selfhood and individual freedom; the notions of feedback mechanisms, choice architecture and social capital are employed to rethink the social and the possibility of social change; and concepts such as shared constitutional interpretation and participatory bubbles are developed as a way out of the stale oppositions that tend to characterise constitutional thought. Throughout, the author takes great pains to relate these diverse concepts and theories to each other, and to weave the different strands into a coherent and defensible theory of constitutional adjudication.
Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa, E. Reid & D. Visser (Eds). : book reviewAuthor Alistair PriceSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 230 –233 (2014)More Less
Private Law and Human Rights, edited by Elspeth Reid of Edinburgh Law School and Daniel Visser of the University of Cape Town, and published by Edinburgh University Press, contrasts South African law against Scottish law. It is the latest contribution to a rich and growing body of comparative scholarship that examines the private law of so-called "mixed" jurisdictions (see for example JE du Plessis "Comparative Law and the Study of Mixed Legal Systems" in M Reimann & R Zimmermann (eds) Oxford Handbook of Comparative Law (2006); VV Palmer Mixed Jurisdictions Worldwide: The Third Legal Family 2 ed (2012)).
Author Annika RudmanSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 233 –237 (2014)More Less
The much anticipated fourth edition of International Law: A South African Perspective by John Dugard and his co-authors Max du Plessis, Anton Katz and Daniel Bethlehem reflects on both international and South African sources. The book contains 26 chapters, presenting a wide variety of traditional, international legal topics as well as an in-depth discussion on the relationship between South African domestic law and international law from both historic and current perspectives. It presents the reader with an extensive display of general topics of international law, available in most textbooks, including the sources of international law, statehood, recognition, territory, secession, immunity, diplomatic protection, universal jurisdiction, the main features of international human rights law, humanitarian law and refugee law, the responsibility to protect, a review of Security Council actions, the use of force and self-defence, the jurisprudence of the International Criminal Court, the African Union and regional protection of human rights as well as environmental law, law of the sea and air and space law.
Women's Social and Economic Rights: Developments in South Africa by B. Goldblatt & K. McLean (Eds.) : book reviewAuthor Elsje BonthuysSource: Stellenbosch Law Review = Stellenbosch Regstydskrif 25, pp 237 –240 (2014)More Less
The chapters in this book were first presented at a seminar organised by the Centre for Applied Legal Studies at the University of the Witwatersrand in 2009 and a number of them were published in the 2009 (27) volume of the South African Journal on Human Rights. While theoretical analyses of socio-economic rights have become a growing area of study in South Africa and elsewhere, a sustained body of scholarship on the gendered dimensions of these rights has yet to develop. Given the well-known fact that South African women, and particularly African women, suffer most acutely from poverty and lack of access to services, this book presents a timely and welcome starting point for what should become a growing area of academic study, activism and strategic litigation.