Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120200001&lang=es vol. 23 num. 1 lang. es <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Improving Access to Justice through Law Graduate Post-Study Community Service in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100001&lng=es&nrm=iso&tlng=es Access to justice for all in South Africa, as most clearly set out in sections 34 and 35 of the Constitution of the Republic of South Africa, 1996, is necessary to realise various other fundamental rights and to improve living standards. There are insufficient free legal services available to the indigent in South Africa, especially in civil matters, thereby often making meaningful access to justice unattainable. This study considers possible approaches, challenges and opportunities for law graduate community service in South Africa (hereinafter "community service") to expand the ambit and impact of free legal services to the indigent. This would promote the constitutional imperative of access to justice, focussing on civil matters. This study concentrates on the access to justice potential of and challenges to such community service. Such challenges will be shown to include its proper utilisation and control through the adequate supervision of graduates. This paper argues that graduate community service has the capacity to promote better access to justice and hence that steps should be taken for its introduction in some form. Community service and means for law graduates to perform this as a necessary part of vocational training before entering the legal profession are provided for in section 29 of the Legal Practice Act 28 of 2014 (LPA). But despite parts of the Act being operative, community service is neither in operation nor do regulations yet exist for its implementation. The specific vocational training element(s) for law graduates is worthy of separate study and is not the focus of this paper. Such a separate study would include opportunity creation - such as gaining the necessary practical experience and the establishment of employment opportunities - and training challenges for graduates during community service. In the pre-LPA era it would have been necessary to focus more on whether community service for law graduates should be included in legislation or not as part of graduates' vocational training and as a key component of free legal service delivery. Some such arguments are alluded to as community service has yet to be implemented and its implementation is not a fait accompli. But because it is now included in the LPA as a legal aid service delivery possibility, this study instead focusses on the need for the effective and appropriate implementation and operation of community service to turn the requirements and encouraging promise of the LPA on community service into reality. The paper explores issues such as the necessary and appropriate supervision and placement of law graduates completing community service. The research very briefly touches on whether community service would best be compulsory for graduates as part of their vocational training or merely one possible route towards admission to the legal profession. Lessons are sought for legal community service in South Africa from existing medical post-study community service schemes as to the role which such schemes have played in expanded service provision and impediments experienced in reaching such goals. These lessons are applied to proposals for the implementation and operation of law graduate community service. This study considers how community service could and should be a key component of a multi-faceted and co-ordinated approach to expand and improve free legal services for the indigent in civil matters in South Africa with its gross inequality, unemployment and poverty. For this goal to be realised, there must be mechanisms for its effective roll-out and operation. <![CDATA[<b>Promoting Constitutional Democracy: Regulating Political Parties in the Central African Republic and Senegal</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100002&lng=es&nrm=iso&tlng=es Constitutions and other legal frameworks are expected to ensure the protection of the fundamental and collective rights of citizens. In this respect, the regulation of political parties is a global phenomenon, which symbolises multi-party democracy, the rule of law and good governance. This article examines the phenomenon of the constitutional and legal regulation of political parties in the Central African Republic (hereafter CAR) and Senegal, two francophone countries with different trajectories and experiences of multi-party democracy. It identifies possible challenges and shortcomings of the regulation of political parties in the two countries, especially in relation to the actual implementation of the existing national frameworks. The article attempts to suggest possible frameworks for an effective implementation of the constitutional and legal rights of political parties, including the constitutionalisation of the enforcement mechanisms, which would undeniably protect the position of political parties in constitutional democracies. In conclusion, the article highlights the role of an independent judiciary in the promotion and protection of the constitutional and legal status of all political parties in the CAR and Senegal. <![CDATA[<b>The Marketing of Consumer and Mortgage Credit as a Responsible Lending Tool: A Comparison of South African, European and Belgian Law: Part 1</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100003&lng=es&nrm=iso&tlng=es The vulnerability of prospective credit consumers to over-committing their resources and the inherent dangers posed by credit advertising in particular necessitate the proper regulation of credit marketing. It is therefore not unsurprising that responsible marketing forms part of the responsible lending (and borrowing) measures of various jurisdictions - including South Africa and the Member States of the European Union - with the aim of preventing the extension of credit to consumers who cannot afford it. In this article the credit marketing laws that the South African, European (mainly in the Consumer Credit and Mortgage Credit Directives) and Belgian legislators have enacted are considered and compared, with a focus on the information to be included in advertising, prohibited advertising and prohibited marketing techniques. The ultimate aim is to determine whether South African law contains sufficient guarantees to protect consumers with respect to credit marketing and its consequences. <![CDATA[<b>The Marketing of Consumer and Mortgage Credit as a Responsible Lending Tool: A Comparison of South African, European and Belgian Law: Part 2</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100004&lng=es&nrm=iso&tlng=es The vulnerability of prospective credit consumers to over-committing their resources and the inherent dangers posed by credit advertising in particular necessitate the proper regulation of credit marketing. It is therefore not unsurprising that responsible marketing forms part of the responsible lending (and borrowing) measures of various jurisdictions - including South Africa and the Member States of the European Union - with the aim of preventing the extension of credit to consumers who cannot afford it. In this article the credit marketing laws that the South African, European (mainly in the Consumer Credit and Mortgage Credit Directives) and Belgian legislators have enacted are considered and compared, with a focus on the information to be included in advertising, prohibited advertising and prohibited marketing techniques. The ultimate aim is to determine whether South African law contains sufficient guarantees to protect consumers with respect to credit marketing and its consequences. <![CDATA[<b>The <i>in Vitro </i>Embryo and the Law: The Ownership Issue and a Response to Robinson</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100005&lng=es&nrm=iso&tlng=es In 2012 the Minister of Health made the Regulations Relating to the Artificial Fertilisation of Persons, which provide that the woman who intends to be made pregnant with an in vitro embryo owns such an embryo and can control the embryo's fate in specified ways. Given that in vitro embryos are outside the woman's body, the rationale for these provisions cannot be to protect the woman's bodily integrity. These provisions are, however, problematic from a constitutional perspective, as they: exclude fathers across the board, and impede the right of all intended parents who will not gestate the pregnancy, like surrogacy commissioning parents, to make decisions regarding reproduction - which include the right not to reproduce and hence to veto the further use of an in vitro embryo for reproductive purposes. Robinson argues that the legislative intent with the 2012 Regulations was not to establish ownership of in vitro embryos, and that in vitro embryos are not legal objects (or subjects), but rather form part of the legal subjectivity of their parents. I respond that the language used in the relevant provision is plain and clear in establishing ownership of in vitro embryos, and that in vitro embryos are therefore legal objects. I further suggest that Robinson's proposition of in vitro embryos forming part of the legal subjectivity of their parents may address the gender equality concern with the 2012 Regulations, but that it in turn causes other problems. In particular, Robinson's rationale for his proposition is problematic, as it appears to conflate the embryo with the prospective child. I rely on the important recent judgment in Ex Parte KAF 2019 2 SA 510 (GJ) that held explicitly that the in vitro embryo should not be equated with the prospective child. Finally, I respond to Robinson's critique of my 2005 article, by clarifying the research questions and answers of that article. I highlight the importance of the moral status of the in vitro embryo to legal and ethical debates relating to the in vitro embryo, and invite academic debate on the topic. <![CDATA[<b>Strikes in Essential Services in Kenya: The Doctors, Nurses and Clinical Officers' Strikes Revisited and Lessons from South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100006&lng=es&nrm=iso&tlng=es The right to strike is one of the fundamental rights enshrined in the Kenyan Constitution, 2010. Any limitation to the right involves the danger of collective bargaining. The right to strike is derived from the Right to Organise and Collective Bargaining Convention, 1949 that Kenya ratified on 18 July 1951. Article 2(4) of the Constitution emphasises that any law inconsistent with it is void. The Kenyan Labour Relations Act, 2007 gives effect to the constitutional right to strike but is also subject to a number of limitations. Such limitations include the prohibition of strikes for employees who are engaged in essential services. Although the limitations to the right to strike may be justified, a number of bottlenecks exists in the current scope and application of the Labour Relations Act. For example, the Labour Relations Act does not provide mechanisms in terms of which essential service employees can lawfully embark on strikes. Unlike disputes in South Africa, those about essential services in Kenya are not preceded by consensus-seeking processes such as conciliation, mediation and arbitration. Instead, essential service disputes are referred directly to the Employment and Labour Relations Court for litigation. Consequently, the rights of employees who are employed in essential services like hospitals and patients' right to access health care services can easily be violated. Due to the lacunae in the Labour Relations Act, an increase in the number of strikes in essential services has been witnessed in Kenya. This article argues that the litigation of disputes in essential services should be the option of last resort. In addition, to date, more than 11 years after the Labour Relations Act came into effect, no provisions have been incorporated or even suggested that employer and trade unions need to conclude minimum service agreements and designate employees to perform the minimum services. This article suggests that, trade unions and government can work together through adopting consultative and more inclusive approaches in order to establish an effective statutory framework that regulates the right to strike in essential services in Kenya. <![CDATA[<b>Property Rights of Nigerian Women at Divorce: A Case for a Redistribution Order</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100007&lng=es&nrm=iso&tlng=es In Nigeria, marriage is hardly conceived as a partnership of equals in relation to the property rights of spouses during marriage and at divorce. This is because the Nigerian courts do not redistribute property at divorce. This leaves the financially weaker spouse (usually the wife) at an economically disadvantaged position. This article therefore compares the position of the matrimonial laws in England with that of Nigeria, in order to establish whether there are provisions for the redistribution of property between spouses at divorce. The comparative analysis reveals that family laws in England empower the family court to redistribute property amongst spouses at divorce. On the contrary, the matrimonial property laws in Nigeria provide for the settlement of property at divorce. The analysis also reveals that the courts in Nigeria adopt the strict property rights approach in ordering the settlement of property, which is detrimental to the wife. The article also makes a case for a redistribution through the economic analysis of the worth of a housewife. The authors therefore argue that the Nigerian courts should depart from this approach and borrow from the English courts. The authors recommend the amendment of the matrimonial property laws to fill this gap. That would enable Nigerian courts to make a redistribution order, so as to vary the recognised property rights of spouses in order to provide compensation for any reasonable loss caused by marriage and ensure that the financial benefits of marriage are shared on a just and equitable basis. <![CDATA[<b>A Note on Sentencing Practices for the Offence of the Unlawful Possession of Semi-Automatic Firearms</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100008&lng=es&nrm=iso&tlng=es Violent crimes in South Africa are often accompanied by the possession or use of semi-automatic firearms. The Criminal Law Amendment Act 105 of 1997 (the CLA) provides for the imposition of minimum sentences for certain firearms-related offences. The question whether the minimum sentencing regime actually applies to the offence of the unlawful possession of a semi-automatic firearm has led to a number of conflicting judicial decisions by different High Courts. This note discusses the statutory interpretation challenges the courts had to grapple with regarding the interplay between the CLA and South Africa's successive pieces of firearms legislation. The Supreme Court of Appeal ultimately found that the offence of the unlawful possession of a semi-automatic firearm must indeed be met with the prescribed minimum sentence. The recent sentencing practices of South African courts in respect of the unlawful possession of semi-automatic firearms within the framework of the CLA are analysed. From the investigation it is evident that courts are more likely to impose the minimum sentence in cases where the accused is also convicted of other serious offences such as murder and robbery. In such cases little attention is given to the firearm-related offences as the courts are more concerned with the cumulative effect of the sentences imposed on different counts. In cases where the accused is convicted of the stand-alone offence of the unlawful possession of a semiautomatic firearm, the courts are nevertheless taking an increasingly unsympathetic stance towards offenders, and terms of imprisonment in the range of 7 to 10 years are commonly imposed. In addition to the accused's personal circumstances, one of the most important factors in deciding on an appropriate sentence is the explanation of how the unlawful possession came about. It seems that the judicial sentiment increasingly does not support the view that the possession of an unlicensed firearm should be treated as serious only if the weapon has been used for the commission of a serious crime. <![CDATA[<b>Kuwali D and Viljoen F (edsj <i>By All Means Necessary: Protecting Civilians and Preventing Mass Atrocities in Africa </i>(PULP Pretoria 2017) ISBN 978 1 920538 66 8</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100009&lng=es&nrm=iso&tlng=es Violent crimes in South Africa are often accompanied by the possession or use of semi-automatic firearms. The Criminal Law Amendment Act 105 of 1997 (the CLA) provides for the imposition of minimum sentences for certain firearms-related offences. The question whether the minimum sentencing regime actually applies to the offence of the unlawful possession of a semi-automatic firearm has led to a number of conflicting judicial decisions by different High Courts. This note discusses the statutory interpretation challenges the courts had to grapple with regarding the interplay between the CLA and South Africa's successive pieces of firearms legislation. The Supreme Court of Appeal ultimately found that the offence of the unlawful possession of a semi-automatic firearm must indeed be met with the prescribed minimum sentence. The recent sentencing practices of South African courts in respect of the unlawful possession of semi-automatic firearms within the framework of the CLA are analysed. From the investigation it is evident that courts are more likely to impose the minimum sentence in cases where the accused is also convicted of other serious offences such as murder and robbery. In such cases little attention is given to the firearm-related offences as the courts are more concerned with the cumulative effect of the sentences imposed on different counts. In cases where the accused is convicted of the stand-alone offence of the unlawful possession of a semiautomatic firearm, the courts are nevertheless taking an increasingly unsympathetic stance towards offenders, and terms of imprisonment in the range of 7 to 10 years are commonly imposed. In addition to the accused's personal circumstances, one of the most important factors in deciding on an appropriate sentence is the explanation of how the unlawful possession came about. It seems that the judicial sentiment increasingly does not support the view that the possession of an unlicensed firearm should be treated as serious only if the weapon has been used for the commission of a serious crime. <![CDATA[<b>Langer L <i>Religious Offence and Human Rights: The Implications of Defamations of Religions </i>(Cambridge University Press 2014) ISBN 9781139600460</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812020000100010&lng=es&nrm=iso&tlng=es This contribution is a review of a book on actions which may offend religious feelings even if it was not the intention of the offender to do so. This book illustrates how, drawings (amongst others) on the face of it, may be construed to be a mere exercise of the right to freedom of expression or free speech in a democratic society. This is regardless of the content of the drawing which, to other societies, may constitute an offence.