Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120130004&lang=es vol. 16 num. 4 lang. es <![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=S1727-37812013000400001&lng=es&nrm=iso&tlng=es <![CDATA[<b>Constitutional basis for the enforcement of ''executive'' policies that give effect to socio-economic rights in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400002&lng=es&nrm=iso&tlng=es Although "executive" policies remain an important governance tool, there appears to be confusion on the status and possible basis for their judicial enforcement in South Africa. The aim of this article is to critically reflect on the status and possible constitutional basis for the enforceability of "executive" policies that give effect to socio-economic rights in South Africa. Based on the jurisprudence of courts and some examples of "executive" policies, this article demonstrates that the constitutional basis for the enforceability of "executive" policies could be located inter alia in the positive duties imposed on government by sections 24(b), 25(5), 26(2) and 27(2) of the Constitution to "take reasonable legislative and other measures" within the context of available resources to give effect to relevant rights. This article argues that these duties amount to a constitutional delegation of authority to the legislative and executive branches of government to concretise socio-economic rights. In addition, this article demonstrates that where "executive" policies give effect to socio-economic rights pursuant to powers delegated by enabling provisions in original legislation that covers the field of socio-economic rights, such policies may be perceived to have the force of law, thereby providing a legal basis for their judicial enforcement. <![CDATA[<b>Constitutional Court 1995 - 2012: How did the cases reach the Court, why did the Court refuse to consider some of them, and how often did the Court invalidate laws and actions?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400003&lng=es&nrm=iso&tlng=es The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court. Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review. The ways in which these 464 applications reached the Court were as follows: • 35 referrals in terms of the interim Constitution; • 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 78 applications for confirmations of parliamentary or provincial laws and actions of the President; • 45 applications for direct access to the Constitutional Court; • 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows: • 7 refusals in respect of 35 referrals in terms of the interim Constitution; • no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President; • 34 refusals in respect of 45 applications for direct access to the Constitutional Court; • 21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered, was invalidated. The invalidations in the different categories rules and action were as follows. In respects of: • Draft constitutional texts - 3 refusals to certify out of 5 texts considered (60%); • Constitutional amendments - 1 invalidation out of 6 considered (16.66%); • Acts of Parliament - 85 invalidations out of 165 considered (51.51%); • Bills of Parliament - 0 invalidations out of 2 considered (0%); • Acts of Provinces - 6 invalidations out of 11 considered (54.54%); • Bills of Provinces - 1 invalidations out of 2 considered (50%); • Local government legislative measures - 2 invalidations out of 5 considered (40%); • Common law and customary law - 8 invalidations out of 11 considered (72.72%); • Administrative and executive action - 45 invalidations out of 71 considered (63,38%); • Court discretionary action - 14 out of 35 considered (40%); • Action in respect of delict and contract - 7 invalidations out of 14 considered (50%). <![CDATA[<b>Using a <i>locum tenens </i>in a private practice</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400004&lng=es&nrm=iso&tlng=es Many medical practitioners in private practice use a locum tenens when they themselves are not available to practice. The locums are often appointed without consideration of the legal consequences or requirements. Legislation distinguishes between an employee and an independent contractor. If the locum is appointed as an employee the doctrine of vicarious liability comes into play which is not the case with an independent contractor. Contracts currently available to appoint a locum give the contracting parties a choice between being appointed as an employee or an independent contractor; this should be changed in that all locums should be appointed as independent contractors especially if the working of the Consumer Protection Act is also taken into consideration. Furthermore, according to the rules of the Health Professions Council of South Africa (HPCSA) the onus to ensure that the locum tenens is registered and fit to practice, rests with the principal. <![CDATA[<b>"Pay now, argue later" rule - before and after the <i>Tax Administration Act</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400005&lng=es&nrm=iso&tlng=es The South African Revenue Service (SARS) is entrusted with the duty of collecting tax on behalf of the South African government. In order to ensure effective and prompt collection of taxes, the payment of tax is not suspended pending an objection or an appeal, unless directed otherwise. This is also known as the "pay now, argue later" rule, and, for value-added tax purposes, is provided for in terms of section 36 of the Value-Added Tax Act 89 of 1991. The "pay now, argue later" rule in terms of section 36 of the Value-Added Tax Act prima facie infringes on a taxpayer's right of access to the courts as envisaged in section 34 of the Constitution. This is due to the fact that a taxpayer is obliged to pay tax before being afforded the opportunity to challenge the assessment in a court. In Metcash Trading Ltd v Commissioner for the South African Revenue Service, the Constitutional Court held the "pay now, argue later" rule in terms of section 36 to be constitutional. Olivier, however, does not agree with the court on several matters. Amongst the problems she indicates are that the taxpayer does not have access to the courts at the time the rule is invoked, and that the court did not consider the fact that there might be less invasive means available which would ensure that SARS's duty is balanced with the taxpayer's right of access to the courts. Guidelines were also issued which provide legal certainty regarding the factors SARS may consider in determining whether the payment of tax should be suspended or not. These guidelines also evoked some points of criticism. Since 1 October 2012, the "pay now, argue later" rule has been applied in terms of section 164 of the Tax Administration Act 28 of 2011. The question arises whether this provision addresses the problems identified in respect of section 36 of the Value-Added Tax Act and the guidelines. In comparing these sections, only slight differences emerged. The most significant difference is that section 164(6) of the Tax Administration Act stipulates that the enforcement of tax be suspended for a period when SARS is considering a request for suspension. Section 164(6) does not provide a solution to the problems identified regarding section 36 of the Value-Added Tax Act. It is even possible that this section could give rise to further problems. Therefore, the legislature has failed to address the imbalance between the duties of SARS and the right of a taxpayer to access the courts. <![CDATA[<b>The conservation status of eagles in South African law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400006&lng=es&nrm=iso&tlng=es This contribution is an introductory survey and preliminary evaluation of the conservation status of eagles in South African law. The methodology is primarily an interdisciplinary literature study of legal texts and texts from the natural sciences. Eagles are some of the largest and most powerful avian predators, and the human response to their presence is dualistic and polarised. At the one extreme, many people admire eagles, while at the other extreme they are perceived as a threat to economic and other interests, and may even be actively persecuted in a conviction that they are vermin. This duality in the human perception of eagles is also prevalent in South Africa and complicates their conservation. The mobility of eagles and other birds of prey means that they cannot be restrained by fencing national parks and other protected areas, and this heightens the likelihood of their entering into conflict with human interests. The conservation problems faced by eagles in South Africa can broadly be divided into direct and indirect threats. Direct threats include the intentional killing of eagles, and trade in eagles and their eggs. Indirect threats include non-targeted poisoning (where poisoned bait is used to control other predators, but eagles find the bait, feed on it, and succumb); habitat loss; mortality induced by dangerous structures; and disturbance. The legal status of eagles is influenced by a large body of legislative provisions, ranging from international and regional legal instruments, through national legislation, to provincial legislative measures. An overview of these provisions is given, with concise explanations of how they apply to the legal status of eagles and other birds of prey in South Africa. The conservation status of eagles in South African law is subsequently evaluated by considering the contribution of the applicable laws to three main types of conservation interventions. In respect of the first, habitat preservation, the relevant legal provisions contribute to an impressive array of conserved habitats in national parks and other protected areas. However, the mobility of eagles, and the fact that some species occur mainly outside protected areas, make it imperative for eagles also to be afforded legal protection outside of protected areas. In respect of the second type of intervention, namely management activities to conserve the species in their habitats, an inquiry is made into how the law addresses the threats of the intentional killing of eagles; trade in eagles and their eggs; non-targeted poisoning; mortality induced by dangerous structures; and disturbance. The protection is found to be sound in principle. In respect of the third and most intensive intervention, captive breeding, a regulatory framework is in place, but no such intervention on eagle species is known to be operative in South Africa. In conclusion a number of recommendations are made. The existing laws can be improved by aligning the legal status of species with their Red List status; listing all bird of prey species that are not Critically Endangered, Endangered, or Vulnerable, as Protected for the purpose of national environmental legislation; and, in the medium rather than the short term, considering the imposition of legal obligations on electricity suppliers to implement measures that will mitigate mortalities on electricity structures. Better application of the existing laws could be achieved by improving compliance and enforcement, and by facilitating the optimal use of Biodiversity Management Plans, environmental research, and environmental education. <![CDATA[<b>The South African Defence Review (2012) and Private Military / Security Companies (PMSCs): Heralding a shift from prohibition to regulation?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400007&lng=es&nrm=iso&tlng=es This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa. <![CDATA[<b>The impact of the <i>Labour Relations Act </i>on minority trade unions: A South African perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400008&lng=es&nrm=iso&tlng=es The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level. It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA. <![CDATA[<b>Improving access to justice through compulsory student work at university law clinics</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400009&lng=es&nrm=iso&tlng=es In this paper an analysis is offered of compulsory so-called "live client" clinical legal education as part of the LLB as a means of improving access to justice for the indigent. This study first explores the factors which motivate which the establishment of a year's compulsory community service during the LLB studies, and making clinical legal education compulsory. The motivation includes inducing law students and graduates to aid in the achievement of access to justice. The research then focuses on what the value of community service is in higher education generally. In the South African civil justice system many ordinary people cannot afford to use the courts because of the expense involved, or because they are ignorant of their rights. This is particularly the case in civil as opposed to criminal matters, as legal aid is more frequently focused on criminal than on civil matters in this country. This paper will consider the role which senior law students may play in rendering pro bono work as part of clinical legal education in their LLB studies. In this regard particular focus will be made on the University of KwaZulu-Natal (UKZN), the only university offering law studies in greater Durban. As for pro bono work by students during their LLB, consideration could be given to making clinical legal education a compulsory part of such students' curricula. Possible compulsory community service for law graduates (ie post-LLB) as envisaged in the proposed Legal Practice Bill falls beyond the ambit of this paper. <![CDATA[<b>The regulation of the possession of weapons at gatherings</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400010&lng=es&nrm=iso&tlng=es The Dangerous Weapons Act 15 of 2013 provides for certain prohibitions and restrictions in respect of the possession of a dangerous weapon and it repeals the Dangerous Weapons Act 71 of 1968 as well as the different Dangerous Weapons Acts in operation in the erstwhile TBVC States. The Act also amends the Regulation of Gatherings Act 205 of 1993 to prohibit the possession of any dangerous weapon at a gathering or demonstration. The Dangerous Weapons Act provides for a uniform system of law governing the use of dangerous weapons for the whole of South Africa and it furthermore no longer places the onus on the individual charged with the offence of the possession of a dangerous weapon to show that he or she did not have any intention of using the firearm for an unlawful purpose. The Act also defines the meaning of a dangerous weapon. According to our court's interpretation of the Dangerous Weapons Act 71 of 1968 a dangerous weapon was regarded as an object used or intended to be used as a weapon even if it had not been designed for use as a weapon. The Act, however, requires the object to be capable of causing death or inflicting serious bodily harm if it were used for an unlawful purpose. The possession of a dangerous weapon, in circumstances which may raise a reasonable suspicion that the person intends to use it for an unlawful purpose, attracts criminal liability. The Act also provides a useful set of guidelines to assist courts to determine if a person charged with the offence of the possession of a dangerous weapon had indeed intended to use the weapon for an unlawful purpose. It seems, however, that the Act prohibits the possession of a dangerous weapon at gatherings, even if the person carrying the weapon does not intend to use it for an unlawful purpose. The state will, however, have to prove that the accused had the necessary control over the object and the intention to exercise such control, as well as that the object is capable of causing death and inflicting serious bodily harm if it were used for an unlawful purpose. The Act does not apply to the following activities: (a) possession of dangerous weapons in pursuit of any lawful employment duty or activity; (b) possession of dangerous weapons during the participation in any religious or cultural activities or lawful sport, recreation or entertainment or (c) legitimate collection, display or exhibition of weapons. It is suggested that these exclusions are acceptable if the religious and cultural events referred to are not of a "protesting" or "confrontational" nature. If such events are indeed "protesting" or "confrontational" in nature, they are covered by section 17 of the Constitution (which authorises only peaceful and unarmed assembly, demonstration, picketing and the presentation of petitions). Religious and cultural events of a "protesting" or "confrontational" character, where dangerous weapons are displayed, run the serious risk of turning violent, and may result in a violation of section 12(1)(c) of the Constitution, which embodies the right of everyone to be free from all forms of violence. <![CDATA[<b>Harnessing Intellectual Property for development: Some thoughts on an appropriate theoretical framework</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400011&lng=es&nrm=iso&tlng=es This paper considers how an appropriate theoretical framework for Intellectual Property may be constructed. Such a framework would be the lens through which contested IP issues may be resolved and upon which national IP policy and legislation might be based. The paper begins by highlighting the inherent tensions in IP, which are caused by the various stakeholder interests that this body of law seeks to balance, and by the cross-cutting nature of IP. It contends that in order to more equitably balance the contesting rights of the creators and users, IP rights should be formulated and enforced so as to meet societal goals or serve public interest, be responsive to the economic environment, and take cognisance of the human rights claims of both creators and users. National socio-economic goals should inform such a framework in a way that ensures that IP is used as a means to achieve these goals and is not perceived as an end. This will require nuances in policy and legislation that meet the country's needs. In particular, as a developing country South Africa would do well to exploit available flexibilities in the various international IP agreements by which it is bound. Due regard also ought to be had to the users' need for affordable access to IP-protected goods in order that they may exercise the right to work and access to knowledge, as provided for by ss 22 and 16 of the Constitution respectively. Similarly, creators ought to be given due recognition, together with reasonable reward and remuneration for their efforts. This will be achieved through the creation of an IP system that provides protection that is compatible with the nature of the good being protected and the manner in which the creative process unfolds. Such protection should rely on registration systems are efficient, simplified and affordable. The accompanying enforcement system should be equally accessible, although the costs of enforcement would depend on the forum used to secure redress. Finally, the resulting IP regulatory framework should be both certain and clear. <![CDATA[<b>Constitutionalising the right legal representation at CCMA arbitration proceedings: <i>Law Society of the Northern Provinces v Minister of Labour</i> 2013 1 SA 468 (GNP)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400012&lng=es&nrm=iso&tlng=es Recently, the issue of legal representation at internal disciplinary hearings and CCMA arbitrations has been a fervent topic of labour law discourse in South Africa. While the courts have consistently accepted the common law principle that there is no absolute right to legal representation at tribunals other than courts of law, a study of recent case law reveals that the majority of court judgments seem to be leaning in favour of granting legal representation at disciplinary hearings and CCMA arbitrations than denying it. In the recent case, Law Society of the Northern Provinces v Minister of Labour, the High Court struck down the rule of the CCMA which restricted legal representation at CCMA arbitration as unconstitutional on grounds of irrationality. The High Court considered that the impugned rule was inconsistent with section 3(3)(a) of the Promotion of Administrative Justice Act, which was specifically enacted to give effect to the right to administrative justice entrenched in the Constitution. In so deciding the High Court considered the importance of job security and the possible loss of job by an employee as a serious matter. This case note aims to analyse critically the court's judgment in Law Society of the Northern Provinces v Minister of Labour and to consider its implications for dispute resolution in South Africa. It is asserted that although the right to legal representation is not absolute at labour proceedings, in light of the court's decision in Law Society of the Northern Provinces v Minister of Labour it is not easy to identify the circumstances that would provide justification for the infringement of the right at CCMA arbitrations and probably at disciplinary hearings as well. Here, an argument is made suggesting that the court in the Law Society case has taken the right to legal representation too far. <![CDATA[<b>Arbitrary deprivation of an unregistered credit provider's right to claim restitution of performance rendered <i>Opperman v Boonzaaier</i> (24887/2010) 2012 ZAWCHC 27 (17 April 2012) and <i>National Credit Regulator v Opperman</i> 2013 2 SA 1 (CC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400013&lng=es&nrm=iso&tlng=es The Constitutional Court in National Credit Regulator v Opperman confirmed the Cape High Court's decision in Opperman v Boonzaaier to declare section 89(5)(c) of the National Credit Act unconstitutional. Therefore, the forfeiture to the state of an unregistered creditor provider's right to claim restitution of monies advanced in terms of an unlawful (and void) credit agreement, was held to amount to an arbitrary deprivation of property in contravention of section 25(1) of the Constitution - the property clause. The provision in effect prohibited courts from deviating from the common law's strict par delictum rule in as far as the effects of unlawful contracts are concerned, the result being that creditors could not retrieve any of the amounts extended to the debtor, despite there being no turpitude or bad faith present. The purpose of this provision was to discourage the concluding of unlawful credit agreements - for instance, agreements concluded by unregistered credit providers - so as to protect consumers against unscrupulous behaviour. Although the broad purposes of the Act are undeniably valid, the Court held that there was no "sufficient reason" for the effects that the Act had in this case, since the credit provider in question was not guilty of the behaviour that the Act tried to combat. In other words, the effects of the Act were over-broad and not proportionate to its stated purposes. This case note comprehensively analyses these decisions in view of interpreting the "confused and confusing" wording of section 89(5)(c), with a specific focus on the application of the section 25(1) non-arbitrariness test. Reference is also made to the earlier judgments in the matter of Cherangani Trade and Investment 107 (Edms) Bpk v Mason. The Opperman decisions illustrate well how the non-arbitrariness test should be conducted in consitutional property cases generally but particularly also in the credit context. Of significance is the fact that the Court for the first time recognised that personal rights sounding in money (an enrichment claim in this instance) should qualify as "property" for constitutional property law purposes. In certain circumstances, therefore, credit regulation may involve deprivation of property such as must satisfy the requirements of the property clause. It is contended that recognising the role of section 25 in the credit context is a positive development that can be explored further. The constitutional provision also calls for lawmakers to draft legislation in such a way that regulatory mechanisms are rational and sufficiently proportionate to its stated goals. <![CDATA[<b>Biodiversity and climate change: Linkages at International, National and Local Levels</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400014&lng=es&nrm=iso&tlng=es The Constitutional Court in National Credit Regulator v Opperman confirmed the Cape High Court's decision in Opperman v Boonzaaier to declare section 89(5)(c) of the National Credit Act unconstitutional. Therefore, the forfeiture to the state of an unregistered creditor provider's right to claim restitution of monies advanced in terms of an unlawful (and void) credit agreement, was held to amount to an arbitrary deprivation of property in contravention of section 25(1) of the Constitution - the property clause. The provision in effect prohibited courts from deviating from the common law's strict par delictum rule in as far as the effects of unlawful contracts are concerned, the result being that creditors could not retrieve any of the amounts extended to the debtor, despite there being no turpitude or bad faith present. The purpose of this provision was to discourage the concluding of unlawful credit agreements - for instance, agreements concluded by unregistered credit providers - so as to protect consumers against unscrupulous behaviour. Although the broad purposes of the Act are undeniably valid, the Court held that there was no "sufficient reason" for the effects that the Act had in this case, since the credit provider in question was not guilty of the behaviour that the Act tried to combat. In other words, the effects of the Act were over-broad and not proportionate to its stated purposes. This case note comprehensively analyses these decisions in view of interpreting the "confused and confusing" wording of section 89(5)(c), with a specific focus on the application of the section 25(1) non-arbitrariness test. Reference is also made to the earlier judgments in the matter of Cherangani Trade and Investment 107 (Edms) Bpk v Mason. The Opperman decisions illustrate well how the non-arbitrariness test should be conducted in consitutional property cases generally but particularly also in the credit context. Of significance is the fact that the Court for the first time recognised that personal rights sounding in money (an enrichment claim in this instance) should qualify as "property" for constitutional property law purposes. In certain circumstances, therefore, credit regulation may involve deprivation of property such as must satisfy the requirements of the property clause. It is contended that recognising the role of section 25 in the credit context is a positive development that can be explored further. The constitutional provision also calls for lawmakers to draft legislation in such a way that regulatory mechanisms are rational and sufficiently proportionate to its stated goals. <![CDATA[<b>Managing family justice in diverse societies</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812013000400015&lng=es&nrm=iso&tlng=es The Constitutional Court in National Credit Regulator v Opperman confirmed the Cape High Court's decision in Opperman v Boonzaaier to declare section 89(5)(c) of the National Credit Act unconstitutional. Therefore, the forfeiture to the state of an unregistered creditor provider's right to claim restitution of monies advanced in terms of an unlawful (and void) credit agreement, was held to amount to an arbitrary deprivation of property in contravention of section 25(1) of the Constitution - the property clause. The provision in effect prohibited courts from deviating from the common law's strict par delictum rule in as far as the effects of unlawful contracts are concerned, the result being that creditors could not retrieve any of the amounts extended to the debtor, despite there being no turpitude or bad faith present. The purpose of this provision was to discourage the concluding of unlawful credit agreements - for instance, agreements concluded by unregistered credit providers - so as to protect consumers against unscrupulous behaviour. Although the broad purposes of the Act are undeniably valid, the Court held that there was no "sufficient reason" for the effects that the Act had in this case, since the credit provider in question was not guilty of the behaviour that the Act tried to combat. In other words, the effects of the Act were over-broad and not proportionate to its stated purposes. This case note comprehensively analyses these decisions in view of interpreting the "confused and confusing" wording of section 89(5)(c), with a specific focus on the application of the section 25(1) non-arbitrariness test. Reference is also made to the earlier judgments in the matter of Cherangani Trade and Investment 107 (Edms) Bpk v Mason. The Opperman decisions illustrate well how the non-arbitrariness test should be conducted in consitutional property cases generally but particularly also in the credit context. Of significance is the fact that the Court for the first time recognised that personal rights sounding in money (an enrichment claim in this instance) should qualify as "property" for constitutional property law purposes. In certain circumstances, therefore, credit regulation may involve deprivation of property such as must satisfy the requirements of the property clause. It is contended that recognising the role of section 25 in the credit context is a positive development that can be explored further. The constitutional provision also calls for lawmakers to draft legislation in such a way that regulatory mechanisms are rational and sufficiently proportionate to its stated goals.