Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120140003&lang=es vol. 17 num. 3 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=S1727-37812014000300001&lng=es&nrm=iso&tlng=es <![CDATA[<b>Proselytism and the right to freedom from improper irreligious influence: The example of public school education</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300002&lng=es&nrm=iso&tlng=es Jurisprudentially speaking, "proselytism" is a concept within the larger genus of the protection of religious rights and freedoms. The word lends itself to differing opinions. However, there is a popular school of thought that "proselytism" has to do only with influencing people to adopt a particular religion. Such an understanding relies on the view that only the "religious" can be insidious and bear the potential to improperly proselytise, and thus excludes the possibility of improper irreligious forms of influence. In referring to the example of public-school education, it is argued that as much as the religious has the potential for improper proselytising, irreligious teachings or expressions also run the risk of improper proselytising. Not only are irreligious beliefs in many instances diametrically opposed to religious beliefs; they are a belief in themselves and cannot be seen as necessarily harmless or without the potential to proselytise improperly. Consequently, this article introduces an equitable and accommodative understanding of proselytism, which places the potentially harmful effects of both religious and irreligious beliefs on an equal footing with each other (something befitting to plural and democratic paradigms). This article therefore also cultivates further debate on improper irreligious proselytism in religious rights and freedoms jurisprudence, a scant topic in human rights jurisprudence. <![CDATA[<b>To be or not to be? The role of private enquiries in the South African insolvency law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300003&lng=es&nrm=iso&tlng=es This article analyses the role of the so-called private examinations in our South African insolvency law and deals with the question of whether or not section 417 of the Insolvency Act (Act 24 of 1936) is adequately and effectively framed in order to fulfil its intended purpose in South African law. The contribution also points out that although the scrutiny of private examinations is not novel; it is argued that further exploration of the subject is justified by virtue of the fact that robust and innovative legislative changes have been experienced in the South African corporate landscape. Although the section has already passed the test of lawfulness and constitutionality, the aim is to ascertain whether the section serves a legitimate purpose and is essential and relevant in a democratic society. This is done by considering the South African law relating to South African private examinations and includes academic texts and judicial interpretation. Both section 417 of the Companies Act (Act 61 of 1973) and the matter of Kebble v Gainsford in particular are discussed. A brief comparative analysis of a similar provision in the Insolvency Act of the United Kingdom (UK), namely section 236 of the Insolvency Act 1986 is also included. Finally recommendations are made on aspects where the section may be enhanced by reform which in part relies on the premise that South African insolvency law in toto is desperately in need of an overhaul. The article concludes that it is vital that section 417 be retained in a new insolvency regime as there is a greater awareness of the interdependence between companies and the society in which they function, and it is submitted that there should be an increased responsibility in the insolvency process on the reasons why companies have failed. The accessibility of the section to practitioners, the inquisitorial nature of the proceedings, the wide scope of the section and the effective sanctions should examinees not comply together combine to make a formula that has over the years proved impervious to circumvention and it therefore fulfils its function with prudent efficiency. <![CDATA[<b>A historical overview of the regulation of market abuse in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300004&lng=es&nrm=iso&tlng=es In an early attempt to combat market abuse in the South African financial markets, legislation such as the Companies Act, the Financial Markets Control Act and the Stock Exchanges Control Act were enacted. However, these Acts failed to effectively curb market abuse activities that were allegedly rife in the financial markets. Consequently, the Insider Trading Act was enacted and came into effect on 17 January 1999. While the introduction of the Insider Trading Act brought some confidence in the financial markets, market abuse activities were still not extinguished. The provisions of the Insider Trading Act were to some extent inadequate and ineffectively implemented. Eventually, the Securities Services Act was enacted to repeal all the flawed provisions of the Insider Trading Act. Notwithstanding these efforts on the part of the legislature, more may still need to be done to increase the number of convictions and settlements in cases involving market abuse in South Africa. It is against this background that a historical overview analysis of the regulation of market abuse is carried out in this article to expose the flaws that were previously embedded in the South African market abuse laws prior to 2004. This is done to raise awareness of the situation on the part of the relevant stakeholders, as they consider whether such flaws were adequately resolved or subsequently re-introduced under the Securities Services Act and the Financial Markets Act. To this end, the article firstly discusses the historical development and regulation of market manipulation prior to 2004. Secondly, the regulation and enforcement of insider trading legislation prior to 2004 are examined. Moreover, where possible, certain flaws of the previous market abuse laws that were reincorporated into the current South African market abuse legislation are isolated and recommendations are made in that regard. <![CDATA[<b>The problematic practical application of Section 1(6) and 1(7) of the Intestate Succession Act under a new dispensation</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300005&lng=es&nrm=iso&tlng=es In recent years many developments have taken place in the field of the law of succession. Du Toit aptly states that "despite the static image that the law of succession often projects, it is a vibrant area of the law that has undergone dramatic changes in recent times and will continue to do so in future". This is indeed the case, as has been illustrated numerous times by the decisions in our courts as to the meaning of the word "spouse" and the recognition of the family as an important social institution. Although the family as an institution is not per se protected in the Constitution, our courts have recognised it as a vital social institution that comes in many different shapes and sizes and it has stressed that one form of family cannot be entrenched at the expense of other forms. As a result of various decisions on the meaning of the word "spouse" under a new dispensation, a Discussion Paper, in the form of Discussion Paper 129 (Project 25) Statutory law revision: Legislation administered by the Department of Justice and Constitutional Development (2011), has seen the light in order to suggest amendments to certain legislative provisions. Unfortunately certain issues covered in this Discussion Paper have not been clearly set out and need further investigation. <![CDATA[<b>The international humanitarian law notion of direct participation in hostilities - A review of the ICRC interpretive guide and subsequent debate</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300006&lng=es&nrm=iso&tlng=es The phrase "direct participation in hostilities" has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to "direct participation in hostilities" temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to "direct participation in hostilities", the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between "direct participation in hostilities" and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a "continuous combat function". Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless "nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice" in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed. <![CDATA[<b>The law and practice of criminal asset forfeiture in South African criminal procedure: A constitutional dilemma</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300007&lng=es&nrm=iso&tlng=es The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals. The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution. This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications? <![CDATA[<b>The new .Africa top level domain: An African initiative in ensuring Africa's rightful place on the global network</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300008&lng=es&nrm=iso&tlng=es The new gTLD programme of the Internet Corporation for Assigned Names and Numbers (ICANN) is the single most important development since the privatisation of the DNS in 1998. The management of the Domain Name System (DNS) has developed from a modest undertaking to its current explosive expansion through the new gTLD programme. Africa has boldly entered the arena through the delegation of the .Africa gTLD. This new development heralds an innovative era in the management of the DNS, especially for Africa. The dotAfrica gTLD launch strategy offers several advantages to African governments and traders alike. One of the innovative features of the management of dotAfrica is the fact that a broader set of rights including commercial, cultural, linguistic, religious and personal rights will be protected. Furthermore, African trade mark proprietors and other rights holders are protected, initially at least, by various innovative rights-protection mechanisms. This development is important for African governments and it should form an integral part of right holders' intellectual property management strategy. <![CDATA[<b>The role of quality in the adjudication of public tenders</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300009&lng=es&nrm=iso&tlng=es The quality of the goods or services that government procures is obviously a very important consideration in deciding which supplier should be awarded a particular public tender. It follows that in the regulation of public procurement, particular attention should be given to the role of quality (also called functionality) in the adjudication of public tenders and the final award decision. In South African public procurement law, the role of functionality in public tender adjudication has been a fairly controversial issue that has resulted in a continuing interaction between courts and law-makers on how and when quality should be assessed and should impact on the final award decision within the framework for public procurement found in section 217 of the Constitution. This contribution tracks the development of the role of functionality in public tender adjudication as prescribed by public procurement regulation since the enactment of the Preferential Procurement Policy Framework Act 5 of 2000, which spearheaded the development of contemporary public procurement regulation in South Africa. The analysis shows how the role of functionality has constantly changed since the enactment of the PPPFA and remains uncertain. This uncertainty relates to different interpretations of the constitutional requirements for public procurement primarily contained in section 217(1) of the Constitution. Whether functionality is used as a qualification criterion, an award criterion or both holds particular practical implications for both suppliers and contracting authorities. It is accordingly important to have certainty on this question. However, it cannot be said that the Constitution and section 217 in particular dictates one approach rather than another. The issue should thus be resolved with reference to the statutory scheme adopted under the PPPFA. <![CDATA[<b>The possible legal development of the integration rule in the South African law of contract by means of the doctrine of rectification</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300010&lng=es&nrm=iso&tlng=es As far back as the early twentieth century the Appellate Division in Cassiem v Standard Bank of SA Ltd, held that: "We are bound by the English rules of evidence and the question has therefore to be decided according to English law, the rule being that parol evidence is not allowed to alter, vary, or contradict a written instrument." The integration rule has always been an integral part of the South African law of contract where the admissibility of the presentation of extrinsic evidence of previous or collateral agreements was considered. In 1998 an extensive report was brought out by the South African Law Commission wherein certain recommendations were made to the Minister of Justice pertaining to, inter alia, the application of the integration rule in the South African law of contract. The Law Commission was of the opinion that the disadvantages of the integration rule outweighed the advantages of legal certainty and finality and recoomended that the rule be abolished and that more subjective evidence should be allowed to ascertain the true intention of the parties. The recommendations by the Law Commission however apparently died a slow death and there has been no attempt since to abolish or modify the rule in the South African legal system. In 'n previous article the view was held that the integration rule is based on a legal rule or legal fiction and that it can therefore be validly abolished or modified by legislation. Legislation is however a drastic step which should only serve as a last resort and other alternatives should first be considered. This article considers one such a possible alternative, namely the remedy of rectification. The focus will be in particular on a brief discussion of the application of the integration rule in the South African law of contract, the field of application and scope of rectification, the relation between rectification and the integration rule, and, lastly, if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. The conclusion is that the remedy of rectification would in all probability not in all instances be able to avoid the strict application of the integration rule and that legislation seems to be the only workable alternative to abolish or modify the integration rule in the South African law of contract. <![CDATA[<b>Exemption clauses and the <i>Consumer Protection Act 68</i> of 2008: An assessment of <i>Naidoo v Birchwood Hotel</i> 2012 6 SA 170 (GSJ)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300011&lng=es&nrm=iso&tlng=es Exemption clauses are a rule rather than an exception particularly in standard-form contracts. Consumers are usually forced to accept such terms on a "take-it-or-leave-it" basis. This state of affairs shows that freedom of contract is theoretical and could lead to injustices. In Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) the Court refused to uphold the exemption clauses based on the fact that it would have been unfair and unjust to the plaintiff who had sustained serious bodily injuries during his stay at the hotel. The article discusses this court decision in the light of the provisions of the Consumer Protection Act 68 of 2008 (CPA) against the background of the previous jurisprudence regarding exemption clauses, including the position of exemption clauses in a new constitutional dispensation. <![CDATA[<b>The unconstitutional practices of the Judicial Service Commission under the guise of judicial transformation: <i>Cape Bar Council v Judicial Service Commission</i> [2012] 2 ALL 143 (WCC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000300012&lng=es&nrm=iso&tlng=es This contribution aims to point out valuable lessons from the shortcomings of the Judicial Service Commission as highlighted in the case of The Cape Bar Council v The Judicial Service Commission. The case involved the failure by the Judicial Service Commission to fill vacancies at the Western Cape High Court despite there being highly eligible candidates available for appointment. The judgment serves as a reminder to the Judicial Service Commission that as a public functionary it is subject to the rule of law and to the constitutional principles of accountability and transparency. Public functionaries are further reminded that they are subject to constitutional control. Such control is essential in ensuring that any abuse of power does not take place.