Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120140005&lang=es vol. 17 num. 5 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=S1727-37812014000500001&lng=es&nrm=iso&tlng=es <![CDATA[<b>Transboundary movements of genetically modified organisms and the Cartagena Protocol: key issues and concerns</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500002&lng=es&nrm=iso&tlng=es Biotechnology or the engineering of the genetic material of species can give way to avenues of possibilities for the benefit of people, fauna and flora but also has the potential of posing untold and undiscovered threats to human beings and other living organisms. One of the first attempts to legislate on international rules on biotechnology can be traced back to article 19 of the Convention on Biological Diversity(CBD) in 1992. The CBD is indeed the first international legal instrument apart from the then European Community's relevant directives to suggest that biotechnology is a matter of concern for the international community while providing a basis upon which more detailed procedures would be elaborated in the field of biosafety. While the CBD includes international rules on access to genetic resources, access to and the transfer of technology, the handling of biotechnology and the distribution of its benefits, it does not include a detailed regulation on genetically modified organisms (GMOs) and their possible adverse effects on the environment, human and animal health. It was only with the coming into existence of the Cartagena Protocol on Biosafety (Cartagena Protocol) to the CBD in 2000 that the safe transfer, handling and use of living modified organisms (LMOs) such as genetically engineered plants, animals, and microbes were at last being catered for, albeit leaving aside the broader categories of GMOs. Due to the need for the negotiators of this protocol to make compromises, there were still key issues on the international biosafety framework pertaining mainly to the scope of the GMOs to be covered by this protocol and by the Advanced Informed Agreement procedure; identification and traceability issues; and liability and redress issues. Nine years after the entry into force of the Cartagena Protocol the transboundary movements of GMOs have clearly increased with new categories of GMOs and genetically modified products to regulate. The debate on the safety of GMOs used for food and feed as well as the effects of GMOs on the receiving environment is still very lively throughout the world, amidst a lack of traceability of GMOs or epidemiological studies in the GMO-producing countries. However, there has been some progress on liability and redress with regard to damage resulting from the transboundary movement of LMOs with the adoption of rules and procedures for liability and redress in 2010 with the Nagoya-Kuala Lumpur Supplementary Protocol "(hereafter the Nagoya SP)" to the Cartagena Protocol, which is yet to enter into force. There are also concerns on the harmonisation of national biosafety regulation, risk assessment and risk management standards, the interpretation of socioeconomic considerations, and the monitoring of compliance with the provisions of the Cartagena The scope of the GMOs covered by the Cartagena Protocol is discussed first, which discussion is followed by the discussion of identification and traceability issues, the harmonisation of national biosafety regulation, the harmonisation of risk assessment and risk management standards, the scope of the relevant socio-economic considerations, implementation, and concerns about the settlement of disputes. <![CDATA[<b>Defending the absurd: the Iconoclast's guide to Section 47(1) of the Superior courts Act 10 of 2013</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500003&lng=es&nrm=iso&tlng=es This contribution was intended as a defence of section 25(1) of the Supreme Court Act 59 of 1959. However, the Supreme Court Act was repealed in August 2013 and replaced by the Superior Courts Act 10 of 2013, and in the process section 25(1) of the former gave way to section 47(1) of the latter. Both sections concern the doctrine of leave to sue judges in South Africa. Both prescribe that any civil litigation against a judge requires the consent of the court out of which such litigation is to be launched. Both apply to civil suits against judges for damage caused by either their judicial or their non-judicial conduct. Although section 25(1) had been one of the more inconspicuous sections of the Supreme Court Act, it was contested on occasion. Both curial and extra-curial challenges to section 25(1) assailed its constitutionality, alleging essentially that its provisions violated the right of access to courts enshrined in section 34 of the Constitution of the Republic of South Africa, 1996 and that such violation did not meet the limitation criteria contained in section 36. It may be anticipated with considerable confidence, given its legal continuity with section 25(1), that any serious assault upon section 47(1) of the Superior Courts Act also will focus upon its relationship to section 34 of the Constitution. This contribution is a pre-emptive defence of section 47(1) of the Superior Courts Act and, by extrapolation, a belated justification of section 25(1) of the Supreme Court Act. An attempt will be made to demonstrate, contrary to conventional wisdom, that section 47(1) does not limit section 34 and passes constitutional muster at the first level of enquiry, thereby obviating the need for advancing to the second level of enquiry contained in section 36 of the Constitution. The jurisprudential crux of section 47(1) of the Superior Courts Act is embedded in the nature of the judicial office and its core value of judicial impartiality. The procedural immunity which the section affords South African judges is a mechanism for sparing them the nuisance of having to deal with frivolous litigation, either as defendant or as adjudicator. Every specious suit against a judge, per definitionem, represents an incursion into judicial impartiality by urging that the court give credence to a claim which does not qualify for curial adjudication. In this regard, the doctrine of leave to sue seeks to ensure that judges do not have to adjudicate claims which resort beyond the compass of their judicial capacity. It is a doctrine which operates to protect and advance the unimpeachable principle of judicial impartiality. <![CDATA[<b>The legal status of the Spanish Imperial Eagle in Spain and thoughts on environmental law and policy as contributing factors in the conservation of species</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500004&lng=es&nrm=iso&tlng=es This contribution reflects on the contributory role of environmental law and policy in the successful conservation interventions on behalf of the rare Spanish Imperial Eagle (Aquila Adalberti), with the aim of gaining insights that may be more universally applicable, including in jurisdictions such as South Africa. An overview of applicable international, European and Spanish laws and policies is given, and the role played by these instruments is considered together with successes attained with diverse conservation goals in respect of the Spanish Imperial Eagle. The exceptionally comprehensive character of the legal protection of the Spanish Imperial Eagle is highlighted, in conjunction with some extra-legal factors that have contributed to successful outcomes. While quantification of the role of the law in the conservation of a species remains elusive, it is probably safe to conclude that environmental law and policy have played a vital and central role in the improvement of the conservation status of the Spanish Imperial Eagle. It is submitted that the conservation interventions on behalf of the Spanish Imperial Eagle show that concerted legal and other conservation interventions can effectively halt and reverse the decline of an endangered species. However, such interventions are onerous and expensive and ideally, effective conservation measures should be in place before populations have declined to a critical level. Birds of prey face similar threats in South Africa and Spain, and a number of South African raptor species will soon be classified as endangered. While South African biodiversity laws and policy are similar to the European and Spanish laws in general import and methodology, the South African laws and policy are more restricted in scope, less detailed and less prescriptive. When comparing the use of Spanish and South African legislation in the conservation of birds of prey, sight must not be lost of the varying conservation needs of different species and the unequal resources available to different jurisdictions. <![CDATA[<b>Barriers to advocacy and litigation in the equality courts for persons with disabilities</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500005&lng=es&nrm=iso&tlng=es The effective implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act4 of 2000 (PEPUDA) and the fulfilment of the South African state's obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD) are dependent on two fundamental tools, advocacy and litigation. This article discusses the outcome of three cases in the Equality Courts and how these cases promote accessibility and access to justice for persons with disabilities. The authors then consider the impact of CREATE, a KwaZulu-Natal NGO's advocacy initiatives to promote the rights of persons with disabilities and the utilisation of the Equality Court to realise those rights. Participants of ten workshops in KwaZulu-Natal identified three barriers to access to justice in accessing the Equality Courts. Firstly, some Equality Courts are geographically (and financially) inaccessible. Secondly, the negative and insensitive attitudes of front-line workers impact on the ability of persons with disabilities to bring equality claims to and access the services of the Equality Court. These barriers constitute discrimination and flout articles 9 and 13 of the CRPD, which require the provision of support for persons with disabilities to access the justice system and the promotion of accessibility to the physical environment, and the provision to them of transportation, information and other services. Thirdly, cultural norms and fears impede access to courts and the agency of persons with disabilities to bring these claims, for example the requirement that traditional leaders provide "permission" to persons with disabilities to sue and a similar requirement of permission from the in-laws of women with disabilities. The article analyses the three barriers identified as inhibiting advocacy and litigation, and explains the implication of these barriers for the state's obligations in terms of articles 5, 8, 9, 12 and 13 of the CRPD. Recommendations are made on overcoming these barriers. <![CDATA[<b>Reassessing judicial independence and impartiality against the backdrop of judicial appointments in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500006&lng=es&nrm=iso&tlng=es The South African Judicial Service Commission (JSC), considered to be exemplary for its independence, plays a pivotal part in judicial appointments. Yet the Commission has long been marred by tensions that have lately erupted into a full-blown conflict between those who could here be referred to as the transformationists, on the one hand, and the liberals, on the other. The transformationists, who may generally be regarded as falling within the sphere of influence of the ruling elite under the African National Congress (ANC), are bent on pursuing the policy of transformation. Hence they insist that the composition of the bench must reflect the national population profile and on individual judges' pursuing the ruling party's ideological goals. The liberals reject this as a threat to judicial independence and the professional competence of the judiciary. On close analysis the clash is based on incompatible interpretations of judicial independence and impartiality. This article is a critique of these interpretations against the backdrop of an assessment of what these notions can reasonably be expected to achieve. It is argued that the liberals are harbouring unrealistic views about judiciaries, believing them to wield power which may even extend over matters of political significance, powers on a par with or even outweighing those of the political branches. However, on proper analysis it is clear that the judiciary is in fact, firstly, inherently weak and dependent on the support of the political branches; and, secondly, it is integrated into the ruling elite with whom they share the same ideological assumptions without any inclination to oppose them. Hence, the impartiality of the courts, when it comes to politically sensitive issues, is distinctively politically (regime) relative and ideologically conditioned. Ironically the transformationists have bought into the liberals' erroneous belief in the potency of the courts (in the above-mentioned sense) and they fear, without foundation, for the political risks the courts might be posing to the ruling elite. This fear is based on an exaggerated vision of the far-reaching consequences that they ascribe to judicial independence and impartiality, believing it to render the judiciary a formidable political force on a par with the political branches. The transformationists would therefore go to extreme lengths to secure an amenable judiciary. This is exemplified by their rather improper insistence that the best candidates need not be appointed, thus compromising even the (limited) independence and impartiality which courts, on a realistic assessment, should have. In doing this the transformationists show a serious lack of appreciation of the distinctive professional nature of the judiciary, whose independence, impartiality and effectiveness are rooted not in political might but in the exceptional professional competence of the incumbents on the bench, who should be drawn from the best candidates the legal professional can produce. <![CDATA[<b>The different worlds of labour and company law: truth or myth?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500007&lng=es&nrm=iso&tlng=es Recently the South African company law landscape underwent a dramatic overhaul with the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance. It is clear that companies are no longer accountable just to their shareholders but also to society at large. Leaders should, for example, direct company strategies and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and should thus also manage the business in a sustainable manner. An important question in company law still today is in whose interest the company should be managed. Different stakeholders of importance to companies include shareholders, managers, employees, creditors etcetera. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies, and it encourages the efficient and responsible management of companies. When considering the role of employees in corporations it must be noted that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political changes were evident after South Africa's re-entering the world stage in the 1990s. Changes in socio-economic conditions within a developing country were also evident. These changes had a major influence on the South African labour law dispensation. Like company law, labour law is to a large extent also codified. Like company law, no precise definition of labour law exists. It is clear from the various definitions of labour law that it covers both the individual and collective labour law and that various role-players are involved. Some of these role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties are ultimately what will guide a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed with the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and transformation of the workplace are central issues in South African labour law. This is due to the constitutional changes that have taken place in South Africa, where the protection of human rights and the democratisation of the workplace are advanced. Before the enactment of the LRA, employee participation and voice was a much-debated topic not only locally but also internationally. It is therefore essential when considering employee participation to take due cognisance of both the labour and company law principles that may be pertinent, as well as the need for workers to have a voice in the workplace and for employers to manage their corporations. This article will attempt to indicate how the different functions, theories and models of labour and company law accommodate and promote the interests of employees in corporations and will also attempt to reconcile these differences. <![CDATA[<b>The regulation of acid mine drainage in South Africa: law and governance perspectives</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500008&lng=es&nrm=iso&tlng=es Acid mine drainage (AMD) is arguably one of the most serious environmental concerns in South Africa. AMD is a legacy left behind by abandoned, derelict and defunct mines, and is a continuing by-product of existing mining activities. In addition to its environmental impacts, AMD will also impact on all the parameters of sustainability, including ecological, social and economic concerns. In particular, AMD is set to affect infrastructure, displace people and affect their livelihoods, influence economic activity, impact on the resource extraction industry, and affect South Africa's policies and actions in relation to climate change and its efforts to move towards a low carbon economy; and it will test the efficiency of regulatory interventions emanating from both the private and the public sector to the extreme. Given these pervasive challenges, in this article we provide a survey of the AMD problem in South Africa through the law and governance lens. We commence by highlighting the various issues and challenges that result from AMD in the environmental context on the one hand, and the law and governance context on the other hand. We then describe the many provisions of the regulatory framework that we believe would be instrumental in responding to the threat. We conclude the article with brief remarks on what we believe are important considerations in the future regulation of AMD. <![CDATA[<b>Spatial practices in Lowliebenhof: the case of <i>Maphango v Aengus Lifestyle Properties (P</i></b><b><i>ty</i></b><b><i>) Ltd</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500009&lng=es&nrm=iso&tlng=es In Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 5 BCLR 449 (CC) the question before the Constitutional Court was when a landlord may legally cancel contracts of lease and evict tenants. In answering this question the court had to consider the constitutional protection against arbitrary evictions in section 26(3) and the provisions of the Rental Housing Act 50 of 1999. The applicants sought a declaratory order that the landlord had terminated their leases unlawfully, because the termination had been intended to double (and in some instances more than double) the rent. The applicants argued that this escalation violated contractual and legislative provisions governing the procedure and conditions under which a landlord can increase the amount of a rental. The Constitutional Court found in favour of the tenants and postponed the appeal to allow any of the parties to lodge a complaint at the Gauteng Rental Housing Tribunal. The narrow focus of this note is the manner in which the Constitutional Court in the Maphango case interpreted the concept of "practice" in the Rental Housing Act and how this in turn corresponds to perceptions of urban spaces. The inquiry is informed by the spatial justice turn and relies on the works of Michel de Certeau, Henri Lefebvre and Doreen Massey. <![CDATA[<b>Rectification and party misdescription: to what extent is rectification competent or useful?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500010&lng=es&nrm=iso&tlng=es The decision in Osborne v West Dunes Properties 176 2013 6 SA 105 (WCC) raises some interesting issues regarding the competence or usefulness of rectifying an incorrect party description in a contract required by law to be in writing and signed. This case note explains and critically analyses the court's reasoning on these issues and suggests that courts should bear in mind certain important principles when dealing with a problem of this nature. <![CDATA[<b>Limiting organisational rights of minority unions: <i>POPCRU v Ledwaba </i>2013 11 BLLR 1137 (LC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000500011&lng=es&nrm=iso&tlng=es The Labour Relations Act 66 of 1995 unequivocally promotes the policy choice of majoritarianism, in furtherance of orderly collective bargaining and the democratisation of the workplace. The majoritarian model aims to minimise the proliferation of trade unions in a single workplace and to encourage the system of a representative trade union. Section 18(1) of the Labour Relations Act enables majority unions to enter into collective agreements setting thresholds of representivity for the granting of access, stop-order and trade-union leave rights to minority unions. In furtherance of the majoritarian framework, collective agreements concluded between majority unions and employers can be extended to non-parties to the agreement in terms of section 23(1)(d) of the Labour Relations Act provided specified requirements are satisfied. In Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (POPCRU) the Labour Court was required to consider if the collective agreements concluded between the employer and the majority union could be relied upon to prohibit the minority union from securing organisational rights. In so doing, the Labour Court had to reconcile the fundamental principle of freedom of association and the right to fair labour practices (to organise and engage in unfettered collective bargaining) within the context of the majoritarian framework. The Labour Court in POPCRU held that the collective agreement concluded with the majority union must have preference over the organisational rights of minority unions, in keeping with the principle of collective bargaining hierarchy and the legislative framework. This case note argues that, while the finding of the labour court in POPCRU is correct on the facts and is in keeping with the principle of majoritarianism, the legislative model may no longer be suitable within the context of the current socioeconomic and political landscape. Strike violence, loss of confidence in existing bargaining structures, and the alienation of vulnerable employees from majority unions has resulted in minority unions taking up the cudgels of frustrated and disempowered employees, as witnessed in the Marikana experience. The note suggests that in the light of the changing dynamics of the collective bargaining environment, it may be time to revisit the majoritarian model.