Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120140001&lang=es vol. 17 num. 1 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=S1727-37812014000100001&lng=es&nrm=iso&tlng=es <![CDATA[<b>Legal challenges relating to the commercial use of outer space, with specific reference to space tourism</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100002&lng=es&nrm=iso&tlng=es Since the launch of the first artificial satellite, Sputnik 1 in 1957, the outer space arena has evolved to include non-state entities, which are becoming serious participants in outer space activities themselves, including venturing into the space tourism market. Although space tourism is still in its infancy, it is estimated that the number of space tourists will substantially increase within the next few years. As space tourist activities increase, accidents will inevitably occur, which will give rise to legal questions relating to the duty of states to rescue space tourists in distress, and the liability for damages. This contribution points out that the current outer space treaty regime, which focuses on the use of outer space by states, is to a large extent outdated and that it cannot adequately deal with the unique legal challenges presented by the rapidly developing space tourism industry. This situation is exacerbated by the fact that the outer space legal framework is very fragmented -consisting of treaties, UN principles and guidelines, regional regulations and intergovernmental agreements, as well as national guidelines and legislation. In order to ensure that space tourism is indeed to the benefit of all mankind, it is imperative that clear international legal rules relating to space tourism be formulated, where standards are set for the authorisation and supervision of commercial space activities and the interests of states, passengers and private actors are balanced as far as possible. In view of the urgent need to address these legal questions and the consequent lack of time to negotiate a binding legal instrument, it is submitted that, as an interim measure, soft law guidelines should be developed in relation to space tourism in order to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use and exploration of outer space. <![CDATA[<b>Constitutional analysis of intellectual property</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100003&lng=es&nrm=iso&tlng=es This article analyses the Constitutional Court's treatment of property interests in the face of state regulation to gain an understanding of the type of state interference that is justifiable in terms of section 25(1) of the Bill of Rights. This is done by examining the Constitutional Court's dicta relating to the meaning of deprivation and how these inform the meaning of property in the constitutional context. The methodology that the Constitutional Court has formulated to assess if state interference complies with the provisions of section 25 is explained to show the type of state regulation that has been found legitimate. We then consider how this understanding of constitutional property and the state's legitimate exercise of its inherent police power interact in the setting of intellectual property by contrasting the various policy objectives underlying the different statutory regimes governing intellectual property. This theoretical analysis is then applied to two contemporary examples of feasible state interference with existing intellectual property interests, namely the proposed plain packaging measures which severely restrict the use of tobacco trade marks, and a fair dealing exception allowing the use of copyright works for the purpose of parody. These examples serve to illustrate the context and manner in which intellectual property interests may come before the Court and the necessary differentiation with which these interests should be treated. The appropriate judicial assessment of the true impact that state action could have on vested property interests is explained and contrasted with the balancing exercise that is employed at the earlier stage of policy making. This discussion is concluded by highlighting some of the interpretational issues that will arise and how some constitutional values could be curtailed in the absence of legislative intervention. <![CDATA[<b>Demystifying the role of copyright as a tool for economic development in Africa: Tackling the harsh effects of the transferability principle in copyright law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100004&lng=es&nrm=iso&tlng=es In the English common law tradition copyright is seen as being in the nature of a property right and thus alienable and transmissible from one person to the other. In contrast, the droit d'auteur system of Continental Europe sees copyright as being an author's right, which attaches to the personality of the author. However, even in this system a distinction can be made between the monist system (as applies in Germany), which treats both moral rights and economic rights as being inseparable and thus equally inalienable, and the dualist system applicable in France, which distinguishes between moral and economic rights, with the former considered inalienable, while the latter is freely alienable. In this way French law embodies the transferability principle in respect of economic rights, in the same way as the Anglo-American system does. Many countries in Sub-Saharan Africa have inherited copyright laws from their erstwhile colonial masters (whether England or France), resulting in the laws of these countries also embodying the transferability principle. It is argued, however, that the transferability principle has had the inadvertent effect of stifling copyright-based entrepreneurship, and thus economic development in these countries. Because of the conditions of impoverishment prevailing in these countries, authors find that they do not have the material resources to economically exploit their copyright works. They thus have no option but to assign their copyrights to others, mainly foreign entities, resulting in an endless cycle where they can never act entrepreneurially in respect of their copyrights. The paper seeks to explore this phenomenon and make proposals of possible solutions. <![CDATA[<b>"Public purpose or public interest" and third party transfers</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100005&lng=es&nrm=iso&tlng=es In this article the difference between public purpose and public interest in section 25(2) of the 1996 Constitution is considered. It is generally accepted that public purpose is a narrower category than public interest and that the distinction between public purpose and public interest does not make any practical difference. However, in this contribution it is suggested that the difference between public purpose and public interest makes no practical difference only in cases where expropriated property is used by the state for the realisation of a particular purpose. The difference between public purpose and public interest becomes more important when a particular expropriation also involves a third party transfer, since it indicates the level of scrutiny that the courts should apply in determining the lawfulness of the expropriation. When property is expropriated and transferred to a third party for the realisation of a public purpose, such as building and managing electricity plants, the lawfulness of the expropriation is not easily questioned. As such, the application of a rationality test to determine the legitimacy of the expropriation is generally easy to accept. However, this lenient approach cannot be as easily accepted where an expropriation and third party transfer takes place in the public interest. Examples of third party transfers in the public interest include land reform, slum clearance and economic development. In the examples of land reform and slum clearance the expropriation and third party transfer is usually authorised in legislation or, as is the case with land reform in South Africa, the 1996 Constitution. Because (as in the land reform example) the expropriation and third party transfer is authorised by the Constitution and regulated by legislation, the application of a rationality test to determine the legitimacy is acceptable. However, the application of a rationality test where property is expropriated and transferred to third parties for broader purposes such as economic development is problematic, especially if there is no specific legislation authorising such expropriation. Although an expropriation involving a third party transfer for purposes of economic development may well be in the public interest because it can lead to the creation of employment opportunities, it is argued that in the absence of specific legislation that authorises both the expropriation and the transfer of the property to third parties, the justification for the expropriation and the transfer is not entirely clear. Therefore, in the absence of a clear legislative scheme authorising the expropriation and transfer of property to third parties for the purpose of economic development, which can be said to fall within a very broad interpretation of the public interest requirement in section 25(2), the courts should apply a stricter scrutiny in evaluating its legitimacy. <![CDATA[<b>The constitutional influence on organ transplants with specific reference to organ procurement</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100006&lng=es&nrm=iso&tlng=es This article assesses the influence of the Constitution of the Republic of South Africa, 1996 on the law pertaining to organ transplants with specific reference to methods of organ procurement. These methods include a system of opting-in, presumed consent, required request, required response, the sale of organs, and organ procurement from prisoners. It is argued, in view of the acute shortage of organs, that the various organ procurement methods are in need of review in the context of the question of whether they are acceptable and sustainable within the constitutional framework. To this end, the article deals with the application, limitation and interpretation of the rights in the Bill of Rights and its interface with the various organ procurement methods in the context of a discussion of applicable legislation and relevant case law. It is argued that a constitutional analysis of the topic is indicative that the State has indeed failed to provide a proper or satisfactory legislative and regulatory framework to relieve the critical shortage of human organs available for transplantation, by ultimately failing to uphold the applicable constitutional rights and values as discussed. <![CDATA[<b>The <i>Regulations Relating to Foodstuffs for Infants and Young Children</i> (R 991): A formula for the promotion of breastfeeding or censorship of commercial speech?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100007&lng=es&nrm=iso&tlng=es The regulation of commercial speech in the interests of public health is an issue which recently has become the topic of numerous debates. Two examples of such governmental regulation are the subjects of discussion in this article, namely the prohibition on the advertising and promotion of tobacco products, as well as the proposed prohibition on the advertising and promotion of infant formulae and other foods and products marketed as being suitable for infants or young children. The article seek to evaluate the recently proposed regulations published in terms of the Foodstuffs, Cosmetics and Disinfectants Act in the light of the reasoning by the Supreme Court of Appeal in the British American Tobacco South Africa (Pty) Limited v Minister of Health 463/2011) [2012] ZASCA 107 (20 June 2012) decision, and in particular in terms of the section 36 test of reasonableness and proportionality found in the Constitution of the Republic of South Africa, 1996. It argues that, although the South African Department of Health must be applauded for its attempt at improving public health in the country, some of the provisions of the proposed regulations are not constitutionally sound. It will be contended that, despite the fact that the promotion of breastfeeding is a laudable goal, the introduction only of measures which restrict the right to advertise these types of products will not necessarily achieve this objective. <![CDATA[<b>A comparative overview of the (sometimes uneasy) relationship between digital information and certain legal fields in South Africa and Uganda</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100008&lng=es&nrm=iso&tlng=es The present article focuses on the (sometimes problematic) relationship between digital information and certain legal fields. Most legal rules developed long before the arrival of the computer and the digital telephone, and these rules are now under considerable strain to adapt. Digital information is rapidly becoming one of the 21st Century's most valuable assets. This raises the question as to whether or not the law is able to adequately protect this phenomenon against the many attacks being launched against it. The present article analyses certain legal fields in this regard, namely privacy, criminal law, and the law of evidence. The world seems suddenly to have woken up to the fact that digital technology might be a mixed blessing, especially as is shown by certain recent incidents relating to privacy in the USA. In order to obtain an "Africa perspective" the legal situation in South Africa is compared to that in Uganda (East Africa) against a background of multilateral treaties that might apply in this regard. An important point to keep in mind while weighing up legal interests is whether the State may attempt to be both neutral umpire (by means of its judicial power) as well as one of the players who want to win (as the executive power, when government information is at stake). A number of recent incidents in which the United States government has been involved seem to indicate that this attempt to sit on two stools at the same time is likely to diminish respect for the government (and its regulatory efforts) amongst the general population. A specific problem with enforcement consists of the international nature of infringements. The Internet knows no borders and this factor suggests that effective international co-operation is an essential prerequisite for the law to function adequately in an international context. The concluding of International treaties between groupings of countries is put forward as perhaps the most effective solution in this regard. <![CDATA[<b>Ten years on, the Kimberley Process Certification Scheme and Zimbabwe's Marange and 'conflict diamonds': lessons to be learnt</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100009&lng=es&nrm=iso&tlng=es The Kimberley Process Certification Scheme (KPCS) came into operation in 2003. Although, the KPCS is not an international treaty, major African diamond producing nations as well as other countries and multinational corperations have taken the contents of the KPCS to have the force of law. Zimbabwe is one such country. However, since the diamond rush in Zimbabwe's Marange region, Zimbabwe has come under international interrogation for the manner and means of its diamond mining, production and trade in the international market. Human rights violations and abuses have been widely documented. Even the Chair of the KPCS and the United Nations have condemned the manner of the mining of Zimbabwe's Marange diamonds. However, the subsequent suspension was short-lived. This paper examines Zimbabwe's Marange conflict diamond situation and its attendant human rights issues, especially in light of ten years having passed since the coming into operation of the KPCS. <![CDATA[<b>Towards the protection of human rights: do the new Zimbabwean constitutional provisions on judicial independence suffice?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100010&lng=es&nrm=iso&tlng=es If human rights are to be effectively protected in any country, the judiciary has to recognise that it also has a role to play in this regard. The rationale for this is that the judiciary has a duty to enhance and protect human rights. Across Africa and most notably in Zimbabwe political interference has been noted as a factor that limits judicial independence. In Zimbabwe the weak protection of judicial independence has contributed to gross human rights violations. Constitutional reforms have been conducted in order to improve the independence of the judiciary and consequently the judicial protection of human rights. These efforts have resulted in the adoption of a new Constitution in Zimbabwe which has replaced the Lancaster House Constitution. The Constitutional reforms have captured legal principles which will ensure an improvement in the human rights situation. Key to the reforms has been the independence of the judiciary. The Constitution guarantees the independence of the judiciary. Despite such guarantees there are a number of challenges with regards to this independence. The aim of this paper is therefore to analyse the judicial reforms introduced by the Constitution of Zimbabwe with a view to establishing whether or not such reforms are likely to improve judicial independence and in turn the protection of human rights in Zimbabwe. <![CDATA[<b>ICT laws in Nigeria: planning and regulating a societal journey into the future</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100011&lng=es&nrm=iso&tlng=es This paper examines the laws on Information and Communications Technology in Nigeria, and the institutional regulatory framework for enforcing the relevant laws. It further appraises selected concepts associated with ICT regulation and some contemporary issues as they relate to the challenges of ICT in Nigeria. The paper suggests regulatory benchmarks for the purpose of repositioning the ICT sector and approaches to strengthening the regulation of ICT in Nigeria. The paper concludes with an emphasis on value-added and result-based approach to the Information and Communications Technology regulation process in Nigeria. <![CDATA[<b>Reflections on how to address the violations of human rights by extractive industries in Africa: a comparative analysis of Nigeria and South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100012&lng=es&nrm=iso&tlng=es Transnational companies (TNCs) in general and those operating in the extractive industry sector in particular have an impact on the realisation of human rights. Yet under international human rights law, instruments regulating TNCs' obligations in terms of human rights are non-binding. Consequently, the state in which TNCs operate remains the only duty bearer of human rights and should ensure that companies under its jurisdiction comply with human rights. The aim of this article is to examine the extent to which Nigeria and South Africa comply with their obligations to ensure that TNCs in extractive industries operating within their borders promote and respect human rights. Ultimately it is argued that the legal architecture in the countries under study does not satisfactorily shield people from the actions of TNCs. In an attempt to remedy the situation, it is suggested that a way forward could be constructed on the following pillars: inserting human rights clauses into international trade and investment agreements; raising awareness of and sensitization on the importance of corporate social responsibility as a "profit maximising mechanism"; turning corporate social responsibility into binding human rights obligations; and using international human rights monitoring mechanisms. Though the points made in this article generally engage the human rights impacts of extractive industries in Nigeria and South African, the proposed solutions are generalisable to other societies in which these industries operate. <![CDATA[<b>The modern-day impact of cultural and religious diversity: "managing family justice in diverse societies"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100013&lng=es&nrm=iso&tlng=es This contribution deals with the modern-day impact of cultural and religious diversity and comments on some of the viewpoints to be found in Managing Family Justice in Diverse Societies.The topics dealt with in this publication create a greater awareness of the challenges family diversity presents, and illustrate that an attempt to adopt a single definite strategy to manage diversity would not be the right approach; rather that each and every situation should be managed according to its unique context. <![CDATA[<b>The case of <i>Government of the Republic of Zimbabwe v Louis Karel Fick:</i> a first step towards developing a doctrine on the status of international judgments within the domestic legal order</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100014&lng=es&nrm=iso&tlng=es The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal's decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a "foreign judgment" as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a "foreign judgment" can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations. <![CDATA[<b>The legislative authority of the local sphere of government to conserve and protect the environment: A critical analysis of <i>Le Sueur v eThekwini Municipality</i> [2013] ZAKZPHC 6 (30 January 2013)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100015&lng=es&nrm=iso&tlng=es Legislative authority in South Africa is divided among the national, provincial and local spheres of government. Section 43 of the Constitution provides in this respect that the legislative authority of the national sphere of government is vested in Parliament; that the legislative authority of the provincial sphere of government is vested in the provincial legislatures; and that the legislative authority of the local sphere of government is vested in the municipal councils. The allocation of legislative authority to municipal councils gives rise to a number of complex questions. One of these is the extent to which municipal councils are entitled to pass legislation that deals with the conservation and protection of the "environment". This issue was considered by the KwaZulu-Natal High Court: Pietermaritzburg in Le Sueur v eThekwini Municipality [2013] ZAKZPHC 6 (30 January 2013). In this case the High Court found that even though the functional area of "environment" has been explicitly allocated to the national and provincial spheres of government and not to the local sphere by the Constitution (see Schedule 4A of the Constitution), municipal councils are entitled to pass legislation that deals with the conservation and protection of the "environment", at least in those circumstances where it forms a part of "municipal planning". While there is no doubt that the functional area of "municipal planning" does encompass certain specific environmental matters at the local level, it does not encompass the broad area of the "environment", as the High Court suggests in its judgment. The approach adopted by the High Court, therefore, is open to some criticism. The purpose of this article is to set out and discuss the High Court's judgment as well as the criticisms that may be levelled against it in the light of the allocation of legislative authority to the three spheres of government. <![CDATA[<b>The interpretation to be accorded to the term "benefits" in section 186(2)(a) of the LRA continues: <i>Apollo Tyres South Africa (Pty) Limited v CCMA</i> (DA1/11) [2013] ZALAC 3</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100016&lng=es&nrm=iso&tlng=es The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) LtdI the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa LtdII the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial AdministrationIII the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action). In Protekon (Pty) Ltd v CCMAIV the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer's conduct then this is subject to arbitration.V It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.VI The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon. Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apollo are stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA.