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.