Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> vol. 22 num. 1 lang. <![CDATA[SciELO Logo]]> <![CDATA[<b>Re-categorising public procurement in South Africa: construction works as a special case</b>]]> Public procurement is generally known to be the acquisition of goods and services by the government from the private sector. Construction works are considered to constitute services and as such are not specifically referred to in the Constitution of the Republic of South Africa, 1996. Re-categorising public procurement may hold many advantages for the regulation of construction procurement law as a unique form of public procurement in South Africa. The definition of construction works is thus important when establishing what is procured in construction procurement. This definition in turn may indicate that the procurement of construction works is indeed a unique form of procurement and should accordingly be re-categorised in South African public procurement law. <![CDATA[<b>Proselytising the regulation of religious bodies in South Africa: suppressing religious freedom?</b>]]> In democratic pluralistic and secular societies, freedom of religion is a fundamental right to be enjoyed by all individuals and religious organisations. A unique feature of this human right is the extent to which it is premised on a personal belief. The latter can be "bizarre, illogical or irrational", but nevertheless deserving of protection in the interests of freedom of religion. However, when the expression of a religious belief or practice transgresses the civil or criminal law it must be dealt with in the relevant legislative framework to hold the transgressor liable. Measures taken by the state to regulate religious bodies in terms of a general supervisory council or umbrella body are an unreasonable and unjustifiable interference with freedom of religion, and hence unconstitutional. I am of the view that the right to freedom of religion depends for its constitutional validity - and viability - on there being no interference (or regulation) by the state except in instances as provided for in terms of relevant legislation. <![CDATA[<b>Alternatives to bankruptcy in South Africa that provides for a discharge of debts: lessons from Kenya</b>]]> The problems faced by debtors in South Africa is not that there are no alternatives to insolvency proceedings, but that the available alternatives do not provide for a discharge of debt as with a sequestration order, which is ultimately what the debtor seeks to achieve. Debtors in South Africa can make use of debt review in terms of the National Credit Act 34 of 2005 or administration orders in terms of the Magistrates' Court Act 32 of 1944 to circumvent the sequestration process. However, both debt review and administration orders do not provide for a discharge of debt and provide for debt-restructuring only, in order to eventually satisfy the creditor's claims. Attention is given to the sequestration process and the alternatives to sequestration as they relate specifically to the discharge or lack of a discharge of a debtor's debts. The South African law is compared to Kenyan Law. This article seeks to analyse the alternatives to the bankruptcy provisions of the newly enacted Kenyan Insolvency Act 18 of 2015 in order to influence the possible reform of insolvency law in South Africa. Like the South African Insolvency Act, the old Kenyan Bankruptcy Act (Cap 53 of the Laws of Kenya) also did not have alternatives to bankruptcy. The old Kenyan Bankruptcy Act, however, contained a provision on schemes of arrangement and compositions. The Kenyan Insolvency Act now caters for alternatives to bankruptcy and provides a wide range of alternatives to bankruptcy, some of which allow debtors in different financial positions to obtain a discharge. <![CDATA[<b>The appointment of a proxy "at any time" in terms of Section 58 of the Companies Act 71 of 2008: <i>Richard Du Plessis Barry </i></b><i><b>ν</b><b> Clearwater Estates NPC </b></i><b>[2017] ZASCA 11</b>]]> Section 58(1) of the Companies Act 71 of 2008 gives a shareholder the right to appoint a proxy "at any time" for the purpose of participating in, speaking and voting on behalf of that shareholder at a shareholders' meeting, or providing or withholding written consent on behalf of the shareholder in terms of section 60. One important issue that arises in regard to the appointment of a proxy relates to the proper interpretation of section 58(1) of the Companies Act 71 of 2008, namely whether this section, as read with section 58(3)(c), constitutes an unalterable provision giving a shareholder an unlimited right to appoint a proxy "at any time" before the proxy exercises the shareholder's rights at the shareholders meeting, or whether the time period within which the instrument of a proxy's appointment must be delivered to the company may be restricted by the MOI. This issue was considered by the sCa in the Richard Du Plessis Barry case in view of the appellant's contention that the provisions of the MOI that limited the time period within which the instrument appointing a proxy must be delivered to the company, or other person on behalf of the company, were valid. In this note, I examine the Richard Du Plessis Barry case with a focus on the proper interpretation of the right of a shareholder to appoint a proxy "at any time" as conferred by section 58(1) of the Companies Act 71 of 2008. I provide some critical comments on the main issues that this judgement raises, including the interpretation of section 58(1) in the context of "alterable" and "unalterable" provisions of the Companies Act 71 of 2008, a purposive interpretation of section 58(1), the interaction between section 58(1) and section 58(3)(c), the significance of the difference in the wording of section 58(1) of the Companies Act 71 of 2008 and section 189 of the previous Companies Act 61 of 1973, as well as the practical implications of the court's decision in this matter. This is followed by a brief comparative analysis with selected international jurisdictions and some concluding remarks. <![CDATA[<b>Sexual Harassment: Why do victims so often resign?</b> <i></i><i><b>Ε</b></i><i> <b>ν</b><b> Ikwezi Municipality </b></i><b>2016 37 ILJ 1799 <i>(ECG)</i></b><b></b>]]> This article endeavours to find answers to the question of why the victims of sexual harassment often resign after the harassment, while the perpetrator continues working, and suggests how some of the human cost to victims of sexual harassment can be prevented. E v Ikwezi Municipality provides a classic example of how the failure of the employer to protect the victim exacerbated her suffering from Post-Traumatic Stress Disorder (PTSD), eventually leaving her with no option but to resign. Had the employer conducted a risk analysis, it could have prevented the sexual harassment by alerting employees to the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace. Further, had the employer been aware that it was responsible for the victim's psychological safety also after the disciplinary hearing, it could have taken measures to ensure her safety. The unsatisfactory sanction (the harasser was not dismissed) could lastly have been referred to the Labour Court for review. Unfortunately, the wrong legal advice and an incompetent chairperson led to the municipality's failing adequately to protect the victim. This caused (and aggravated) the symptoms of PTSD, which forced the victim to resign. <![CDATA[<b>Municipal Law Making under SPLUMA: A Survey of Fifteen "First Generation" Municipal Planning By-Laws</b>]]> The legal framework for spatial planning and land use management changed with the introduction of the new Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). SPLUMA facilitates the shift of power over critical areas of land use management from provincial governments to local governments, which results from the Constitution allocating "municipal planning" to municipalities. With this comes a responsibility for municipalities to adopt municipal planning by laws. This article focuses on four of the many challenges SPLUMA needed to address namely (1) the division of responsibilities between national, provincial and local government, (2) the interrelationship between plans and rights, (3) planning and informality and (4) making government cohere. The article introduces these four challenges and examines how SPLUMA seeks to address them. In particular, it conducts a preliminary assessment of fifteen "first generation" municipal planning by-laws to assess how they address the four themes in SPLUMA. <![CDATA[<b>Promoting Public Participation in the Energy Transition: The Case of France's National Debate</b>]]> In an energy transitions era, the citizens tend to be increasingly considered as actors of the energy system. This situation reinforces in turn the importance of public participation processes into energy policy or legislation design. In 2012-2013, a significant public participation process in the field of energy policy was organised in France, named National Debate on the Energy Transition. From the beginning, it was proclaimed that its results would be integrated into a flagship energy transition act, which did happen with the adoption of the Energy Transition for Green Growth Act of 2015. This paper provides an overview of the organisation of this public debate and of the integration of its outcome into the Energy Transition Act. The experience of France can serve for other countries engaged in a process of transition towards a more sustainable society and especially towards a massive change of their energy mix. It addresses the successes as well as the failures of the French case and provides some key learning points to enhance the public participation into the Law-making process concerning the energy transition. <![CDATA[<b>A Legal Perspective on Social Media Use and Employment: Lessons for South African Educators</b>]]> In this article, the author provides a legal perspective on the interplay between social media use and employment. The unique characteristics of social media are identified in order to frame the article before a number of considerations with regard to employment relationships that impact on deciding social media misconduct cases are deliberated upon. Thereafter, the author reflects on the implications of social media transgressions for educators' professions and contemplates the forms that social media misconduct by South African educators can take, with specific focus on defamation. Before the article reaches its conclusion, social media evidence and the impact of the unique characteristics of social media on users' legitimate expectations of privacy are also considered. The article concludes with a few guidelines on how educators can avoid the pitfalls that make social media use potentially hazardous to their employment. <![CDATA[<b>Judicial Mandate in Safeguarding Environmental Rights from the Adverse Effects of Mining Activities in Zambia</b>]]> The protection of the environment from the effects of mining activities, though cardinal, has been a daunting task in Zambia. A polluted environment affects the rights of those who depend on a clean one for their survival. In remedying the pollution caused by mining activities, numerous legislative and policy frameworks have been put in place and institutions responsible for ensuring compliance operationalised. Notwithstanding such interventions, the problem of pollution emanating from mining activities has persisted. This has led individuals and spirited non-governmental organisations to bring legal actions firstly against erring mining companies for their failure to comply with environmental regulations, and secondly against the government for its failure to ensure compliance by the mining companies. The courts before whom such matters have been brought have seemingly prioritised the supposed development brought by investment in the mining sector over the environmental rights of those whose livelihood is anchored in a clean environment. The article underscores the mandate of the courts in safeguarding the environmental rights of persons whose survival is dependent on a clean environment. In doing so the article critically examines the cases which have come before the courts and how these cases have been dealt with in relation to the protection of the environment and ultimately an individual's environmental rights. <![CDATA[<b>Analysing and Comparing Warrantless Tax Inspections and Searches</b>]]> Sections 45 and 63 of the Tax Administration Act 28 of 2011 (TAA) confer drastic information gathering powers on officials of the South African Revenue Service (SARS). On the one hand, section 45 permits warrantless routine (non-targeted) and non-routine (targeted) inspections by a SARS official in respect of records, books of accounts and documents found at premises where a taxpayer is reasonably believed to be conducting a trade or enterprise. The purpose of such inspection is to determine whether there has been compliance with specific obligations by the taxpayer. Section 63, on the other hand, permits, on the grounds of urgency and expediency in exceptional circumstances only, warrantless non-routine (targeted) searches by a senior SARS official of a taxpayer and of third parties associated with a taxpayer, as well as searches of a taxpayer's premises and those of third parties. In addition, section 63 permits the seizure of relevant material found at premises searched. All searches and seizures must occur for the purposes of the efficient and effective administration of tax Acts generally. A comparative analysis of sections 45 and 63 of the TAA reveals the existence of key differences in the substance and practical operation of their provisions. This article distils these differences through an in-depth discussion of the nature and extent of the powers of inspection and search conferred by these provisions, as well as by conceptualising the terms "inspection" and "search" for the purposes of sections 45 and 63 respectively. <![CDATA[<b>The Right to Strike under the <i>Labour Relations Act </i>66 of 1995 (LRA) and Possible Factors for Consideration that Would Promote the Objectives of the LRA</b>]]> The Labour Relations Act 66 of 1995 (hereafter the LRA) was promulgated to redress the injustices and inequality within labour relations. It seeks to do so through four objectives which give effect to the LRA's purposes of transformation within the labour relations framework. One of these objectives is to promote orderly collective bargaining. It is envisaged that if parties engage in collective bargaining, then disputes should be resolved speedily and amicably without having employees resort to strikes and employers to lock-outs. This in turn would ensure that production within the workplace continues without interruption. Thus, the workdays lost would be decreased and productivity would be increased. One of the main features of the LRA is the endorsement and regulation of strike action. Employers have always possessed greater authority than employees due to their managerial prerogative, thus strike action is viewed as a necessary way of levelling the playing field between employers and employees in the collective bargaining framework. Strike action is regarded as forming part of the collective bargaining framework. It has been acknowledged that without the threat of strike action, collective bargaining would be futile. However, strike action in South Africa has been increasingly alarming over recent years. This is primarily due to the manner in which employees are asserting their demands. There has been an undeniable increase in the intensity of violence, intimidation, harassment, destruction to property and civil unrest evident in strikes. Even more disturbing is that these strikes have not been contained within the employment relationship; instead, the ramifications of disorderly strikers have caused severe consequences for innocent members of society and the country as a whole. This article highlights the violent context in which strikes take place and the necessity of limiting potential violence. In doing so, this article seeks to consider the viewpoints of two judgments, Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC), which have addressed the issue of whether non-unionised members are required to provide separate notices of their intention to strike. It is argued that a strict interpretation of section 64(1)(b) of the LRA is required, in the light of the chaotic and violent strike action that has taken place over the years, as that would have the effect of creating greater certainty and predictability in the event of a strike. Thus, an expectation of order would be instilled which in turn would fulfil one of the objectives of the LRA, which is to promote orderly collective bargaining. <![CDATA[<b>The Value of the Persistent Objector Doctrine in International Human Rights Law</b>]]> This article critically analyses the use of the persistent objector doctrine in unilaterally challenging the validity of Sexual Orientation and Gender Identity (SOGI) rights and the related state obligations. The persistent objector doctrine gives effect to state sovereignty and provides a mechanism through which states can object to a customary norm preventing the objecting state from incurring any legal obligations once the norm has emerged. The aim of this article is to reflect on whether the persistent objector doctrine could legitimately be used to negate state obligations that would naturally follow from the crystallisation of customary norms in the area of SOGI rights. In this sense the article is both concerned with analysing (not concluding on) current state practice in terms of understanding if and how the persistent objector doctrine is applied, and with gazing forward in terms of analysing whether, if customary law emerges to protect SOGI rights, the persistent objector doctrine could in fact be applied to limit or comprehensively shield states from SOGI-related obligations. This analysis takes place within the framework of the UNHRC Resolution 32/2, which creates an Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity, and of the responses of the seven African states that provided statements before the UNHRC in the process leading up to this resolution. <![CDATA[<b>"Innovative Orders" under the South African <i>Consumer Protection Act </i>68 of 2008</b>]]> This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time". The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures". <![CDATA[<b>Challenges Surrounding the Adjudication of Women's Rights in Relation to Customary Law and Practices in Tanzania</b>]]> Women's rights litigation has produced varied outcomes in many African countries. Although courts have looked at the legislation that discriminates against women with different degrees of success, matters such as tradition and culture continue to be unpredictable when subject to lawsuit. In Tanzania, the judiciary has gradually begun to recognise that discrimination on a prescribed ground cannot be justified. However, this principle has not blocked some judges from maintaining that gender discrimination based on customary rules can still be justified, despite the existence of internal, regional and national human rights law, which prohibits it. It is contended that the judiciary has a significant role to play in ensuring that customary law and harmful traditional practices are reformed and advanced to comply with human rights legislation and ensure equality between men and women in Tanzania. <![CDATA[<b>The Search and Seizure of Digital Evidence by Forensic Investigators in South Africa</b>]]> The discipline of digital forensics requires a combination of skills, qualifications and knowledge in the area of forensic investigation, legal aspects and information technology. The uniqueness of digital evidence makes the adoption of traditional legal approaches problematic. Information technology terminology is currently used interchangeably without any regard to being unambiguous and consistent in relation to legal texts. Many of the information technology terms or concepts have not yet achieved legal recognition. The recognition and standardisation of terminology within a legal context are of the utmost importance to ensure that miscommunication does not occur. To provide clarity or guidance on some of the terms and concepts applicable to digital forensics and for the search and seizure of digital evidence, some of the concepts and terms are reviewed and discussed, using the Criminal Procedure Act 51 of 1977 as a point of departure. Digital evidence is often collected incorrectly and analysed ineffectively or simply overlooked due to the complexities that digital evidence poses to forensic investigators. As with any forensic science, specific regulations, guidelines, principles or procedures should be followed to meet the objectives of investigations and to ensure the accuracy and acceptance of findings. These regulations, guidelines, principles or procedures are discussed within the context of digital forensics: what processes should be followed and how these processes ensure the acceptability of digital evidence. These processes include international principles and standards such as those of the Association of Chiefs of Police Officers and the International Organisation of Standardisation. A summary is also provided of the most influential or best-recognised international (IOS) standards on digital forensics. It is concluded that the originality, reliability, integrity and admissibility of digital evidence should be maintained as follows: • Data should not be changed or altered. • Original evidence should not be directly examined. • Forensically sound duplicates should be created. • Digital forensic analyses should be performed by competent persons. • Digital forensic analyses should adhere to relevant local legal requirements. • Audit trails should exist consisting of all required documents and actions. • The chain of custody should be protected. • Processes and procedures should be proper, while recognised and accepted by the industry. If the ACPO (1997) principles and ISO/IEC 27043 and 27037 Standards are followed as a forensic framework, then digital forensic investigators should follow these standards as a legal framework. <![CDATA[<b>Gender Inequality and Land Rights: The Situation of Indigenous Women in Cameroon</b>]]> Land is an essential resource that serves as a means of subsistence for millions of people in the world and indigenous communities and women in particular. Most indigenous societies' survival is closely tied to land. In Cameroon, indigenous women are the backbone of food production in their communities. That makes access to land important, as it is a significant source of wealth and power for indigenous peoples in general and indigenous women in particular. While women all over the world encounter gender-based discrimination in relation to the control and ownership of land, indigenous women face triple discrimination on the basis of their gender (as women), their ethnicity (as indigenous peoples) and their economic class (economically poor). They are often dehumanised, degraded and subjected to treatment as second-class human beings despite the existence of national legislation that discourages such practices. This paper interrogates the possibility of including indigenous women in government and decision-making processes in Cameroon in the hope that they may be involved in key decision-making processes that affect them, thereby reducing their economic and social vulnerability. It concludes with some thoughtful recommendations on policy reform aimed at ensuring access to land for indigenous women as well as socio-economic justice in its broadest sense. <![CDATA[<b>Are Close of Pleadings now Irrelevant? An Evaluation of the Impact the <i>Nkala </i>Judgment has on <i>Litis Contestatio</i></b>]]> The position regulating close of pleadings in South African law of civil procedure has for a long time been unchallenged. However, the court in Nkala v Harmony Gold Mining Company Limited 2016 5 SA 240 (GJ) developed the common law to allow for the transmissibility of claims for general damages to the deceased's estate even if pleadings have not reached the stage of litis contestatio. The argument is that while the need for the development for the common law is recognised, the minority opinion should be the preferred approach. The majority held that the common law should be developed to allow all claims for general damages to be transmissible to the deceased's estate even if the stage of litis contestatio has not been reached. This note posits that the points raised by the minority opinion are of sufficient magnitude to prevent the immediate wholesale development of the common law. Detailed legal argument specifically addressing the development of the common law as a whole in this context, as well as the knock-on effects of the same were not ventilated, and as such the majority judgment can be viewed as premature. The paper provides an analytical and critical view of the judgment. <![CDATA[<b>Standing on Unsteady Ground: <i>AREVA NP Incorporatedin France v Eskom SOC LTD</i></b>]]> Areva NP Incorporated in France v Eskom Holdings SOC Ltd 2017 6 BCLR 675 (CC) was a dispute over a multi-billion-rand tender. Although the majority of the Constitutional Court recognised the public importance of the case, it adjudicated the dispute entirely on a preliminary point. It found that the applicant did not have legal standing to seek the judicial review of the award of the tender. This case note has three aims. First, I will argue that the Constitutional Court's majority judgment in Areva was generally unpersuasive. Second, I will attempt to show that Areva exposes an unresolved legal question: when should a court consider the merits of a case made by a litigant with questionable standing? Third, I will propose a method for resolving this question by way of substantive judicial reasoning in any given case. <![CDATA[<b>Introducing a Serpent into the Garden of Collective Bargaining: <i>A Case Analysis of </i></b><i><b>Numsa</b><b> Obo Members </b><b>ν</b><b> Elements Six Productions (Pty) Ltd </b></i><b>[2017] ZALCJHB 35 (7 February 2017)</b>]]> This case note is an analysis of Numsa obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017). The jurisprudence advanced in this case is pertinent to balancing the employer and employee's rights in the context of collective bargaining. The worker's right to strike is one of the rights entrenched in the South African constitution. In addition, this right to strike should not be directly or indirectly undermined without a just cause. The preamble of the South African Constitution seeks to redress the unjust laws of the past including those in the employment arena. Furthermore, unfair discrimination is also one of the prohibited practices which are sanctioned not only domestically but internationally as well in terms of the International Labour Conventions. This note contributes to the existing literature of labour law by critically analysing the decision reached by Tlhotlhalemaje J. <![CDATA[<b>Lewyn </b><b>Μ</b><b> <i>Government Intervention and Suburban Sprawl: The Case for Market Urban ism </i>(Palgrave MacMillan 2017) ISBN: 978-1-349-95149-9</b>]]> The writer is of the opinion that government intervention is the probable cause of suburban sprawl in American cities. Two types of sprawl are discussed, namely, sprawl which results due to the creation of suburbs and sprawl arising from the inability to be mobile without the use of one's personal transport. The writer makes use of comparative tables and statistics to add credibility to the findings. The school system, the creation of highways, making jay-walking a crime and the legal obligation to provide huge parking lots for shopping centres are some of the unusual reasons why there has been excessive sprawl in American cities. Solutions are suggested to counter government intervention. Although the study is USA based, book could have universal appeal. However, as acknowledged by the writer, the cost that will have to be incurred, may be a barrier. <![CDATA[<b>Jacobsohn G and Schor </b><b>Μ</b><b> (eds) <i>Comparative Constitutional Theory </i>(Edward Elgar Publishing Cheltenham, UK 2018) ISBN 978 1 78471 912 8 (cased); 978 1 78471 913 5 (eBook)</b>]]> The writer is of the opinion that government intervention is the probable cause of suburban sprawl in American cities. Two types of sprawl are discussed, namely, sprawl which results due to the creation of suburbs and sprawl arising from the inability to be mobile without the use of one's personal transport. The writer makes use of comparative tables and statistics to add credibility to the findings. The school system, the creation of highways, making jay-walking a crime and the legal obligation to provide huge parking lots for shopping centres are some of the unusual reasons why there has been excessive sprawl in American cities. Solutions are suggested to counter government intervention. Although the study is USA based, book could have universal appeal. However, as acknowledged by the writer, the cost that will have to be incurred, may be a barrier.