Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120150001&lang=en vol. 18 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Editorial</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Domestic partners and "The choice argument": <i>Quo vadis?</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100002&lng=en&nrm=iso&tlng=en In the absence of formal legal recognition, domestic partners are required to regulate the consequences of their relationship by utilising alternative regulatory measures and remedies which are, for the most part, inadequate. The traditional justification used to differentiate between domestic partners and spouses is known by some as the choice argument. The choice argument is based on the rationale that persons who choose not to marry cannot claim spousal benefits. It understands choice narrowly as it takes into account only an objective legal impediment to marriage. As such, it has been the driving force behind the non-recognition of heterosexual domestic partnerships. Same-sex domestic partnerships, on the other hand, have until recently been recognised under the choice argument on an ad hoc basis, as there existed an objective legal impediment to their marriage, namely their sexual orientation. According to the majority of legal commentators the enactment of the Civil Union Act 17 of 2006 removed the objective legal impediment against same-sex marriage. They therefore argue that the choice argument should now be applied to both heterosexual and same-sex domestic partners equally. However, the Constitutional Court has expressed some doubt as to the correctness of this assumption. Taking into consideration the choice argument's narrow understanding of choice, together with the possible unfair discrimination caused by its application, an alternative theoretical basis for the future recognition and regulation of domestic partnerships had to be found. Three possible solutions were investigated, namely the model of contextualised choice, the function-over-form approach, and finally the Smith model. Because of the invasive effect of the latter two approaches, this study advocates for the adoption of the model of contextualised choice. If adopted it would mean that the subjective considerations of domestic partners will be taken into account and they will be afforded with a minimum degree of protection based on need. After having accepted this approach the study had to determine to what extent proposed legislation adopts a contextualised approach to choice. Accordingly, it had to be determined whether proposed legislation provides domestic partners with need-based claims while still upholding the established differences between domestic partnerships and formalised relationships. It was ultimately concluded that the proposed legislation would have the effect of blurring the differences insofar as registered domestic partnerships were concerned, the reason being that such a partnership comes into existence through a public expression of the partners' commitment and, as such, does not really fall within the ambit of the definition of a domestic partnership in the narrow sense of the word. With regard to unregistered domestic partners, it was concluded that the proposed legislation went too far in protecting unregistered partners' proprietary rights (even if only on an ex post facto basis) as these claims were not based on need. It was therefore recommended that the proposed legislation be redrafted. If not redrafted the proposed legislation would have the effect not only of infringing on the autonomy of one or both of the partners but also of creating a regulatory system which does not fully appreciate the differences between marriage and domestic partnerships. <![CDATA[<b>When does state interference with property (now) amount to expropriation? An analysis of the <i>Agri SA </i>court's state acquisition requirement (Part I)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100003&lng=en&nrm=iso&tlng=en Section 25 of the Constitution provides two ways in which the state may interfere with property rights, namely deprivation (section 25(1)) and expropriation (section 25(2)). As only the latter requires compensation, there is an incentive for property holders to label any infringement upon their property as expropriation in the hope of being compensated for their losses. It is therefore essential to have a principled distinction between these two forms of state interference, especially given the danger that uncertainty in this regard can hold for legitimate land reform initiatives, which often entail severe limitations on property. In the Agri SA case the Constitutional Court recently revisited this distinction and held that the distinguishing feature of expropriation is that it entails state acquisition of property. Two aspects of this judgment are worthy of consideration. Firstly, the centrality of acquisition makes it necessary to clarify its meaning and role in our law. Secondly, the Court's effect-centred test to establish whether acquisition took place appears incapable of coherently categorising property infringements that fall within the grey area between deprivation and expropriation. To address these two questions this article is divided into two parts. Part I investigates the meaning and role of state acquisition in South African law. Pre-constitutional expropriation law reveals that expropriation is an original method of acquisition of ownership and that the objects of expropriation include ownership, limited real rights, and certain personal rights, which correspond to the meaning attributed to this requirement in Agri SA. However, post-constitutional judgments diverge from pre-constitutional law regarding the role of state acquisition, where it was merely regarded as a general hallmark of expropriation. After Agri SA state acquisition is (now) the "key feature" that distinguishes expropriation from deprivation. A brief analysis of Australian constitutional property law shows that the meaning attached to "acquisition" in that jurisdiction is broadly similar to the construction placed upon the term in South African law, which explains why the expropriation of limited real rights (as well as the extinguishment of claims in certain cases) amounts to acquisition of property. The jurisprudence of the Australian High Court also sheds light on one of the factors laid down in Agri SA for determining whether or not acquisition took place, namely the source of the affected right. It also confirms another aspect of pre-constitutional South African expropriation law, namely that whether a property interference results in expropriation or not does not depend only on whether or not acquisition occurred. In dealing with these considerations Part II of this article expands on the shortcomings of confining the expropriation question to whether or not acquisition took place. It then suggests an alternative approach to state acquisition, one which focuses on the purpose of the impugned statute, as opposed to its effect, as was done by the Constitutional Court in Harksen. <![CDATA[<b>When does state interference with property (now) amount to expropriation? An analysis of the A<i>gri SA </i>court's state acquisition requirement (Part II)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100004&lng=en&nrm=iso&tlng=en Section 25 of the Constitution provides two ways in which the state may interfere with property rights, namely deprivation (section 25(1)) and expropriation (section 25(2)). As only the latter requires compensation, there is an incentive for property holders to label any infringement with their property as expropriation in the hope of being compensated for their losses. It is therefore essential to have a principled distinction between deprivation and expropriation, especially given the danger that uncertainty in this regard can hold for legitimate land reform initiatives, which often entail severe limitations on property. This contribution attends to Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC), where the Constitutional Court recently revisited this distinction and held that the distinguishing feature of expropriation is that it entails state acquisition of property. Without state acquisition the interference can (at most) amount to deprivation. Unfortunately, viewing state acquisition as the "key requirement" for expropriation is problematic. Firstly, it ignores the true nature of this feature in that it is only a consequence of a valid expropriation rather than a pre-requisite for it - at least in terms of pre-constitutional law. It is therefore inaccurate, concerning both pre- and post-constitutional expropriation case law, to regard acquisition as an indispensable requirement for expropriation. Secondly, limiting the constitutional property inquiry to whether or not the state acquired property appears inadequate as a means of solving difficult cases where the state acquires property pursuant to infringements like taxation and criminal forfeiture. As both these examples result in state acquisition, there must be another explanation of why they do not amount to expropriation. <![CDATA[<b>Leveraging traditional knowledge on the medicinal uses of plants within the patent system: The digitisation and disclosure of knowledge in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100005&lng=en&nrm=iso&tlng=en Traditional knowledge (TK) plays an important role in the global economy and is valuable not only to those who traditionally depend on it in their daily lives, but also to modern industry, especially the global biotechnology, pharmaceutical and agribusiness corporations. Yet the exploitation of TK by these industries does not usually lead to corresponding benefits to indigenous communities either in the form of attribution or compensation. Such misappropriations of TK are aided by the fact that the global intellectual property (IP) regime as presently structured is based entirely on the traditionally western or conventional description of knowledge, as are its conceptions of individual intellectual property ownership. In response to the fact that their calls for the reform of the global patent system have not be heeded, most developing countries, including South Africa, have resorted to the adoption of a radically different strategy in their approach to intellectual property, particularly as it concerns the protection of their TK from misappropriation. This is evident in the adoption of strategic measures in South Africa for the protection of various aspects of its TK forms from misappropriation, such as the National Recordal System (NRS) and Disclosure of Origins (DRs). This paper seeks to explore the implications of these measures in leveraging TK within the structure, content and conceptual framework of the patent system in South Africa. The focus is on TK associated with the medicinal uses of plants (TKMUP). <![CDATA[<b>The South African <i>Companies Act and </i>the realisation of corporate human rights responsibilities</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100006&lng=en&nrm=iso&tlng=en The Companies Act 71 of 2008 (the Companies Act) was promulgated in April 2009 and came into effect on 1 April. The purpose of this Act is, among other things, to promote compliance with the Bill of Rights as provided for in the Constitution of the Republic of South Africa, 1996 (the Constitution), in the application of company law. This gives recognition to the constitutional imperative to bring company law within the South African constitutional law framework. This article argues that by including the promotion of compliance with the Bill of Rights as provided for in the Constitution in the application of company law, the Companies Act effectively reinforces a duty for companies to ensure that they should always seek to prevent violations of human rights, particularly those human rights that are directly linked to their operations. This article looks at certain provisions in the Companies Act and argues that the inclusion of these provisions if interpreted in a certain manner will reconcile the values and practices of company law with the related human rights concerns. It argues that the inclusion of the Bill of Rights in the application of company law ensures that human rights concerns are also considered within the functioning of the company. The article then looks at the various provisions in the Act which have the potential to ensure that this position is achieved in the application of company law. <![CDATA[<b>A future for the doctrine of substantive legitimate expectation? The implications of <i>Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100007&lng=en&nrm=iso&tlng=en In this paper I briefly discuss the development of the doctrine of legitimate expectation in South African law, which had left the way open for the Constitutional Court to develop a doctrine of substantive legitimate expectation in KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal (KZN JLC). I then discuss the court's refusal to develop the doctrine in KZN JLC and analyse the approach adopted instead, which saw the court invoke rationality review to create a new legal mechanism for the enforcement of a unilateral, publicly promulgated promise by government to pay on broad public law grounds. I do so from the perspective of whether or not this creative approach amounted to the development of the doctrine by another name. I consider the implications of the creative approach in KZN JLC for the development of the doctrine of substantive legitimate expectation under administrative law in future. Finally I discuss how the creation of a new legal mechanism to enforce publicly promulgated promises to pay was "subversive of PAJA and the scheme in s 33 of the Constitution". <![CDATA[<b>Inclusive basic education in South Africa: Issues in its conceptualisation and implementation</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100008&lng=en&nrm=iso&tlng=en Education is one of the most topical issues in South Africa. In recent years, particularly in the period after the adoption of the UN Convention on the Rights of Persons with Disabilities (2006) (hereinafter CRPD), the discourse on the education of children with disabilities has mainly focused on the potential of White Paper 6 on Special Needs Education (2001) (hereinafter WP 6) and its implementing programmes to facilitate the realisation of the right to education for children with disabilities. The CRPD proposes inclusive education as the appropriate way of ensuring the right to education for children with disabilities, and sets out a framework for the implementation thereof. In addition, the CRPD sets out other principles which essentially redefine the approach to the interpretation and implementation of the rights of persons with disabilities. One such principle is the principle of non-discrimination, which demands that all rights be implemented on a basis of equality between all people, disability notwithstanding. Arguably, the legal and policy frameworks on education in South Africa reflect the standards proposed under the CRPD to some extent, and other instruments on the right to education. However, there are still considerable challenges in the conceptualisation and implementation of inclusive education, especially at the basic education level. These challenges are not unique to South Africa, and are mainly attributable to the evolutionary background of the concept of inclusive education at the international level. Hence for instance, the understanding of inclusive education often tends to focus exclusively on the education of persons with disabilities as opposed to the inclusion of all marginalised and excluded groups. This narrow understanding is replicated in South African law, policy, and practice of education. Challenges to the realisation of inclusive basic education in South Africa are compounded further by the pertinent issues underlying the implementation of basic education in South Africa such as the question of equality in education, the financing of basic education, the nature of the state’s duties pertaining to the provision of basic education, and the interpretation of the notion of basic education. The understanding of inclusive education in South Africa has also been impacted by historical factors, such as the apartheid exclusion of the masses from mainstream basic education, and the subsequent need to "include" everyone in post-apartheid education. All of these factors point to the need to interrogate the current approaches to inclusive basic education in South Africa as against the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), and international standards that South Africa has committed to through the ratification of the CRPD and the UN Convention on the Rights of the Child (1989) (hereafter the CRC). For instance, there is a need to establish the extent to which the differentiated obligations with respect to basic education as distinct from other levels of education apply to inclusive education. Hence, is there a difference between the nature of the state’s obligations in respect of "basic education" and those relative to "inclusive basic education"? Further, it is imperative to establish the convergence or divergence between inclusive education as set out in the CRPD and as implemented through WP 6. <![CDATA[<b> "Just piles of rocks to developers but places of worship to Native Americans" - Exploring the significance of earth jurisprudence for South African cultural communities</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100009&lng=en&nrm=iso&tlng=en Throughout the years cultural communities across the world have borne witness to many unending attempts at the destruction of their places of worship. This endemic problem has arisen in a number of places, such as in the USA and in most of the world's former colonies. Having been colonised, South African cultural communities have experienced the same threats to their various sacred sites. This article seeks to argue and demonstrate that cultural communities in South Africa stand to benefit from the properly construed and rich earth jurisprudence arising out of the courtroom experiences of some of the cultural communities identified elsewhere in the world. It also proposes several arguments peculiar to South Africa which could be advanced by cultural communities seeking to protect their sacred lands. <![CDATA[<b>Legal aspects with regard to mentally ill offenders in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100010&lng=en&nrm=iso&tlng=en The purpose of this note is to discuss legal aspects with regard to mentally ill offenders with specific reference to the defence raised as a result of mental illness. In order to fully understand this defence it is important to provide a clinical background on what forensic psychiatry is. It is also necessary to define certain clinical concepts such as the concept of mental illness, and the criteria for the classification of mental illnesses. This then leads to a discussion of the defence of mental illness. A conclusion is drawn at the end, with a summary of the findings. <![CDATA[<b>Huidige regsontwikkeling ten aansien van uitwinbaarverklaring van 'n verband oor 'n onroerende saak</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100011&lng=en&nrm=iso&tlng=en Wanneer . verbandskuldeiser . verbandskuldenaar se onroerende saak weens wanprestasie uitwinbaar wil laat verklaar, is hy aan streng formaliteite onderworpe ter beskerming van die verbandskuldeiser en verbandskuldenaar wat saaklike sekerheidsregte oor . onroerende saak het. Daar is verskillende stadiums waaraan die verbandskuldeiser moet voldoen voordat hy 'n verband oproep ten einde eksekusie teen die sekerheidsobjek te verkry. Die oproepingsproses kan in vier stadiums verdeel word: eerstens, die voorverhoorprosedure; tweedens, die bepaling van die geskikte hof . jurisdiksie; derdens, die oproeping van 'n verband in die hof . hofprosedure; en, vierdens, beslaglegging en die eksekusieverkoping (eksekusie). Hierdie stadiums het onlangs verskeie veranderings ondergaan wat hoofsaaklik deur die Grondwet van die Republiek van Suid-Afrika, 1996 (die Grondwet) en ander verbruikers-beskermingsmaatreels soos die Nasionale Kredietwet 34 van 2005 teweeggebring is. Volledigheidshalwe bespreek ek onlangse regsontwikkeling met verwysing na nuwe regspraak en wetgewing ten aansien van die eerste drie stadiums van die oproepingsproses van 'n verband op 'n onroerende saak. Daar word besondere klem gele op ontwikkeling ten aansien van die hofprosedure (litigasieprosedure) by die uitwinbaarverklaring van . verband, wat die derde stadium in die oproepingsproses is. Beslaglegging en die daaropvolgende eksekusieverkoping kom egter nie in hierdie artikel aan bod nie.¹ <![CDATA[<b>What constitutes a benefit by virtue of section 186(2) of the <i>Labour Relations Act 66 </i>of 1995? <i>Apollo Tyres South Africa (Pty) Ltd v CCMA </i>2013 5 BLLR 434 (LAC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000100012&lng=en&nrm=iso&tlng=en The uncertainty surrounding the concept benefit as provided for in section 186(2) of the Labour Relations Act 66 of 1995 was created not by the courts but rather by the legislature. The concept is not defined and clearly has a wide ambit. In previous decisions the courts upheld a restrictive interpretation of benefits to maintain the divide between disputes of interest and disputes of rights and to ensure that issues that should be the subject of negotiation could not become issues that can be decided by an arbitrator. Previously the courts insisted that a benefit was something arising out of a contract or law. In the Apollo case the court had to determine what constitutes a benefit and if a benefit is limited to an entitlement which arises ex contractu or ex lege. The court found that the early retirement scheme was a benefit, although the employee at that stage did not have a contractual entitlement to the benefit and that the benefit was subject to the employer's discretion. What becomes clear from this case is that the unfair labour practice jurisdiction cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies. The Labour Appeal Court criticizes the distinction between salaries and remuneration drawn by our courts and describes it as artificial and unsustainable. Under the unfair labour practice regime the conduct of the employer may be scrutinized by the CCMA in at least two instances, namely when an employer fails to comply with a contractual obligation, an entitlement or right that an employee may have in terms of a statute, and secondly when an employer exercises a discretion under the contractual terms of a scheme conferring a benefit, including situations where the employer enjoys a discretion in terms of benefits provided in terms of a policy or practice - rights created judicially. This decision places the emphasis on the employer's actions and the unfairness of such acts or omissions.