Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120170001&lang=es vol. 20 num. 1 lang. es <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Competing Preferent Community Prospecting Rights: A Nonchalant Custodian?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100001&lng=es&nrm=iso&tlng=es Traditional communities that were precluded from the benefits and financial rewards of exploitation of the mineral resources of South Africa are afforded the opportunity to lodge an application with the Department of Mineral Resources (hereafter the department) to obtain a so-called preferent prospecting right (or mining right) in respect of land which is registered - or to be registered - in their name. An applicant on behalf of the community has to meet the requirements of section 104(2) of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA). This in line with one of the objectives of the MPRDA of expanding the opportunities for historically disadvantaged persons, such as traditional communities, to enter into, and actively participate in, the mineral industry and to benefit from the exploitation of the nation's mineral resources (s 2(d)). The Minister of Mineral Resources ((hereafter the minister), in his/her capacity as the custodian of the mineral resources of South Africa on behalf of the people of South Africa (s 3(1)), is, amongst others, by implication tasked with achieving, these objectives. The same applies to the department and its officials. However, this was unfortunately not the experience of a traditional community, the Bengwenyama-Ya-Maswazi community (hereafter the BYM community), who had to battle through two rounds of litigation with the minister, the department and persons and entities which promoted their own interests whilst attempting to convey the (false) impression that they were representing the community. The subject of this discussion is the second round of litigation between the Bengwenyama-Ya-Maswazi Tribal Council and Genorah. The second round of litigation involved competing applications for preferent community prospecting rights in two related appeals heard together by the Supreme Court of Appeal (hereafter the SCA). The first appeal concerned preferent community prospecting rights on the farm Nooitverwacht (hereafter the Nooitverwacht appeal) and the second appeal involved preferent community prospecting rights on the farm Eerstegeluk (hereafter the Eerstegeluk appeal). The focus of the discussion is on the Nooitverwacht appeal, and references (where appropriate) will be made to the Eerstegeluk appeal. A number of related issues are also discussed - these include the distinction between prospecting rights and preferent community prospecting rights; the meaning of "... land which is registered or to be registered in the name of the community concerned" (with reference to restitution land, redistribution land, and community land acquired from own resources); and the changing legal landscape relating to community decision-making and consultation. <![CDATA[<b>The Legal Nature of the Duty of Care and Skill: Contract or Delict?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100002&lng=es&nrm=iso&tlng=es This article evaluates the legal nature of the duty of care and skill of directors. In terms of the Companies Act 71 of 2008 this duty is essentially delictual in nature. This article evaluates whether the duty is in fact delictual in nature. Case law, which considered the duty of care and skill and where it had been sought to establish liability for directors, has in fact mainly been in respect of non-executive directors. A clearer distinction should therefore be drawn between executive and nonexecutive directors whose duties would be more of a contractual nature. The article then evaluates whether the legal nature of the duty of care and skill would lead to any practical difference depending on the cause of action. <![CDATA[<b>The Exclusion of Liability for Emotional Harm to Passengers in the Warsaw and Montréal Convention: Moving Away from Floyd, Siddhu and Pienaar to the <em>Stott</em> Case?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100003&lng=es&nrm=iso&tlng=es This contribution focuses on the transport of passengers on international routes and the legal regime set down by the Warsaw Convention of 1929 and reinforced by the Montréal Convention of 1999. These Conventions regulate commercial aviation by detailing a set of minimum standardised procedures for flight safety, such as standards for air navigation systems, amongst others, to ensure safe and efficient air travel. The legal regime also regulates the possible claims that may be made against airlines for the death of or harm to passengers, as well as relating to damage to and loss of baggage. The regime not only limits claims temporally and by location, but it also excludes the application of national legal regimes. With regard to claims of harm to dignity the regime disallows such claims to be brought within the restrictions placed by the legal regimes or on any other basis. The contribution does not address the full coverage of these Conventions, only the exclusion of mental / emotional injuries. The Convention excludes emotional harm from the definition of death and physical harm. However claimants have brought claims to undermine the main exclusion of claims with regard to compensation for emotional harm. This contribution explores the exclusion of claims in the Warsaw and Montréal Conventions and thereafter analyses two court decisions in common law countries where this exclusion of claims was challenged and the challenge failed. <![CDATA[<b>Rights, Regulation and Bureaucratic Impact: The Impact of Human Rights Litigation on the Regulation of Informal Trade in Johannesburg</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100004&lng=es&nrm=iso&tlng=es In contemplating the extent to which rights-based litigation is conducive to positive social change, attention ought to be paid to the bureaucratic impact of court judgments that vindicate rights against the State. As a case study of such impact, this article considers the effects of human rights litigation on the regulation of informal trade in the City of Johannesburg, where a 2013 attempt by local government to clamp down on informal trade in the central business district (CBD) led to high-profile court action. After describing and problematising the City's general approach to managing informal trade, the article focuses on "Operation Clean Sweep", which aimed to rid much of the CBD of informal traders and became the focal point of rights-based resistance. It then briefly describes the constitutional and jurisprudential framework within which the legal challenge to "Operation Clean Sweep" was to be decided, before critically discussing the judgment of the Constitutional Court in South African Informal Traders Forum v City of Johannesburg 2014 4 SA 371 (CC), which effectively halted "Operation Clean Sweep" by interdicting the City from removing traders from their places of business. The article then proceeds to consider the aftermath of the judgment, and assesses its impact on the City's informal trade policy and urban management practices, as well as on the broader regulatory and political environment around street trade in South African cities. The article shows that the bureaucratic impact of the judgment has, at best, been mixed, and that the judgment has not been entirely successful in disrupting the legal and bureaucratic mindsets, frameworks and processes that simultaneously create, exacerbate and unsuccessfully attempt to address the "unmanageability" of street trade in Johannesburg. <![CDATA[<b><em>Kerkhoff v Minister of Justice and Constitutionai Development</em> 2011 2 SACR109 (GNP): Intermediary Appointment Reports and a Child's Right to Privacy Versus the Right of an Accused to Access to Information</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100005&lng=es&nrm=iso&tlng=es General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion. <![CDATA[<b>The Search for Environmental Justice</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100006&lng=es&nrm=iso&tlng=es General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion. <![CDATA[<b>Editorial 2017 (20) Special Edition: Water Security</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100007&lng=es&nrm=iso&tlng=es General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion. <![CDATA[<b>Water Security and International Law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100008&lng=es&nrm=iso&tlng=es The article explores water security from an international law point of view. The article argues that in order to better understand water security it is important to focus on the function of international water law. Even though water security is a relatively recent concept it was latent in the process of the evolution of international water law. In addition, the article examines the relationship between man and water from the point of view of water security. The article seeks to answer the question: how does international water law deal with that relationship? Is water only an object to be utilised and protected or has the relationship become more complex and ambivalent through the occurrence of various extreme events. Furthermore, the article places the concept of water security into a historiographical and substantive context. It explores three broad approaches by international law to water issues: general international law, the regulatory approach and the management approach. The article argues that they are all relevant to water security. Finally, the article seeks to demonstrate that even though water security has emerged as a new notion, this does not mean that international law does not include rules and principles relevant for water security. Indeed, many general principles of international law are applicable in the context of water security. In addition, specific regulations dealing with water quantity and quality issues have been developed in international environmental law, although they are not necessarily labelled as water security rules. Moreover, various risk management methods have been elaborated to deal with water-related disasters and crises. Reciprocally, water security arguments are not necessarily new notions but rather reflect already existing concepts and principles. <![CDATA[<b>Water Security and Climate Change: The Need for Adaptive Governance</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100009&lng=es&nrm=iso&tlng=es Climate change will bring about unprecedented economic, social and environmental effects, which require both the mitigation of greenhouse gas emissions and adaptation to its adverse effects. Water is the main element through which the impacts of climate change will be felt. Climate change results in increased uncertainties, complexities, stress and potential for conflicts within water management, both among and within states. New forms of governance are needed if the world is to respond to the need to adapt to changes in freshwater supply and to manage water security risks. This paper suggests that adaptive governance should to be main-streamed into all water regulation to ensure the availability of and access to safe water resources and to prevent water-related conflicts. The paper discusses the concept of water security in the context of climate change, the threats that climate change poses to water security, and the concept and implications of adaptive governance as a possible solution. The application of adaptive governance requires a certain degree of institutional and normative flexibility, instruments and institutions that can respond and adapt to changes and manage the level of uncertainty associated with the impacts of climate change. The governance institutions, methods and instruments should be responsive to new information and different kinds of uncertainties, while reflecting the vulnerabilities, capacities, needs and priorities of both societies and ecosystems in the face of climate change. Water security risks could be reduced by increased hydrosolidarity among states, which would present the challenges posed by climate change on water governance and security as primarily an opportunity for new forms of cooperation. <![CDATA[<b>Water Security and Judicial and Administrative Confusion in South Africa: <em>The Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 ν</em><em> MEC for the Department of Water Affairs, Gauteng</em> 2015 ZAGPPHC 211(17 April 2015)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100010&lng=es&nrm=iso&tlng=es One of the gravest constraints which South Africa faces in its efforts to promote development and to lift much of its population out of poverty is the relative scarcity of its water. Significant changes were made to South Africa's water law in the 1990s, especially with the promulgation of the National Water Act 36 of 1998. In terms of this Act a Water Tribunal was created which ought to have enhanced water security and to have provided a settled forum to adjudicate disputes and to assist in developing the jurisprudence of water law. Instead the Tribunal appears to have created almost as much confusion as clarity before it was dissolved in much uncertainty over whether it would continue in existence or not. A recent judgment in the Gauteng High Court (Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 v MEC for the Department of Water Affairs, Gauteng) has created uncertainty by departing from the precedent of a relatively recent judgment in the North Gauteng High Court (Escarpment Environment Protection Group and Wonderfontein Community Association v Department of Water Affairs and Xstrata Alloys (Pty) Ltd and The Water Tribunal). In the context of the uncertainty created by the falling into desuetude, at least between 2011 and 2016, of the Water Tribunal, and contradictory indications from National Government, litigants have been forced to seek other fora for remedies. On occasion, courts have been sympathetic and given sensitive judgments -on occasion they have not. Against this background of inconsistent jurisprudence, it is important that there be greater clarity of rights, duties and institutions, and that institutions become settled as soon as possible so that a consistent jurisprudence can begin to emerge in the water rights field. While the situation stabilises, which it is hoped that it will soon begin to do, it is suggested that both courts and government act with circumspection in considering applications concerning water use rights; and be sensitive of the current uncertain circumstances when making decisions. The difficulties of ensuring water security and administrative fairness in South Africa demand nothing less. <![CDATA[<b>Water Security and the Right to Water in Southern Africa: An Overview</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100011&lng=es&nrm=iso&tlng=es The Southern African region's water-related problems are quite diverse. From the struggles of indigenous communities in Botswana to the cholera outbreaks in Zimbabwe; from the difficulties of poor communities in accessing basic water services to the disputes between municipal councils and individual well-to-do water users, it is abundantly evident that water security is a goal/vision that needs to be pursued by governments. Yet, much of the holistic scholarly focus on water security within the region has been on transboundary water management, to the exclusion of local/national water constitutional frameworks. Through four cases from Botswana, South Africa, Zambia and Zimbabwe the paper addresses selected aspects of the varied water issues, in particular the constitutional right to water and how that impacts on water security within the region. The literature and case law reviewed in the paper indicate that while there are benefits to constitutionalising the right to water as a fundamental right, courts are still able to read the right to water into existing rights, especially the right to life. However, reading in has its own limitations, including that courts sometimes leave hanging/unpronounced government duties/responsibilities where the right to water is not provided for. Accordingly, the paper attempts to show that while the right to water could be read into other existing rights like the right to life, water security could be better achieved through an independent constitutional human right to water, which creates constitutional duties on the state. <![CDATA[<b>Regulating Against Business "Fronting" to Advance Black Economic Empowerment in Zimbabwe: Lessons from South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100012&lng=es&nrm=iso&tlng=es This article examines Zimbabwe's indigenisation legislation, points out some of its inadequacies and draws lessons from South Africa's experiences in implementing its own indigenisation legislation. Both countries have encountered challenges relating to an upsurge in unethical business conduct aimed at defeating the objectives of their black economic empowerment programmes, policies and legislation. This practice is called business fronting. However, while South Africa has succeeded in enacting a credible piece of legislation aimed at addressing this issue, Zimbabwe has yet to do so. The article points out that the failure to specifically regulate against business fronting poses the most significant threat to the attainment of the laudable aims and objectives of the indigenisation programme and related legislation. In order to avoid becoming a regulatory regime that is notorious not only for being functionally ineffective but also for tacitly permitting racketeering in reality, the article argues for the adoption of anti-fronting legislation in Zimbabwe using the South African legislation as a model. <![CDATA[<b><em>Lodhi 5 Properties Investments CC </em></b><em><b>ν</b><b> FirstRand Bank</b></em><b> Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100013&lng=es&nrm=iso&tlng=es On 22 May 2015, the Supreme Court of Appeal (SCA) handed down a judgment in the matter of Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on a loan in terms of Islamic law (Sharia law) may be a defence for a claim for mora interest in terms of a loan agreement. This note critically discusses the judgment in the light of the approach adopted by the SCA with regard to addressing a dispute arising from a contract that has Islamic law as a governing law. As this is the first case to come before the SCA in South Africa, this note critically analyses how the court discussed the principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court's assertion that a claim for mora interest has nothing to do with and is not affected by the Sharia law's prohibition against payment of interest on a loan debt. It also looks at the SCA's approach (as a common law court) with regard to the enforcement of the principles of Islamic banking law. The judgment raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion in the context of the continuing growth and expansion of Islamic banking and finance law in South Africa. <![CDATA[<em><b>A Liberal Actor in a Reaiist World the European Union Regulatory State and the Global Political Economy of Energy</b></em>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100014&lng=es&nrm=iso&tlng=es This contribution reviews the book entitled "A Liberal Actor in a Realist World The European Union Regulatory State and the Global Political Economy of Energy" authored by Andreas Goldthau and Nick Sitter. It was published by Routledge in 2015. <![CDATA[<b>The Experience of Face Veil Wearers in Europe and the Law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100015&lng=es&nrm=iso&tlng=es This contribution reviews the book entitled "A Liberal Actor in a Realist World The European Union Regulatory State and the Global Political Economy of Energy" authored by Andreas Goldthau and Nick Sitter. It was published by Routledge in 2015. <![CDATA[<em><b>Responsible Mining: Key Principles for Industry Integrity</b></em>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812017000100016&lng=es&nrm=iso&tlng=es This contribution reviews the book entitled "Responsible Mining: Key Principles for Industry Integrity" authored by Sara Bice and published by Routledge in 2016.