Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120180001&lang=pt vol. 21 num. 1 lang. pt <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>The Registration of Special Notarial Bonds under the Security by Means of Movable Property Act and the Publicity Principle: Lessons from Developments in Belgium</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100001&lng=pt&nrm=iso&tlng=pt Many people do not own immovable property to offer as security but do have movable property which can be offered as security for the repayment of a debt. In today's world, where the costs of a motor car can exceed that of a house, the increasing value of movable things makes them popular and appropriate security objects. Under the common law pledge, delivery of the movable property from the pledgor (the debtor) to the pledgee (the creditor) has to take place in order for the pledgee to acquire a real security right in the property. Delivery of the property is aimed at ensuring compliance with the publicity principle. The principle of publicity entails that the existence of a real security must be known to the public. With the aim of promoting commerce, certain countries have taken the initiative in reforming their laws on pledge to allow the debtor to retain possession of the movable property that serves as security. Furthermore, technology has advanced to a level where national registration systems which can be accessed easily and at minimal cost can be established. The South African legislature enacted the Security by Means of Movable Property Act 57 of 1993 which makes provision for a pledge without possession. This Act deemed a duly registered notarial bond over specified movable property to have been delivered as if delivery had in fact taken place, thereby substituting the common law delivery requirement with registration in the Deeds Office. On 30 May 2013 the Belgian House of Representatives adopted a Belgian Pledge Act which allows for a non-possessory pledge on movable property subject to registration in a newly created public register called the Electronic Pledge Register. This article therefore examines the efficacy of the registration system of special notarial bonds in South African law and whether this form of registration complies with the publicity principle looking at the developments of a computerised registration system taking place in Belgium. <![CDATA[<b>Pathological Corporate Governance Deficiencies in South Africa's State-Owned Companies: A Critical Reflection</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100002&lng=pt&nrm=iso&tlng=pt Globally, states use state-owned companies (SOCs) or public corporations to provide public goods, limit private and foreign control of the domestic economy, generate public funds for the fiscus, increase service delivery and encourage economic development and industrialisation. Particularly given its unique socio-political and economic dynamics, a country such as South Africa clearly needs this type of strategic enterprise. Yet, that does not mean that everything at our SOCs is as it should be. The beleaguered South African Broadcasting Corporation (SABC) has recently seen the resignation of board members, shareholder interference in its operational affairs, and a high turnover of chief accounting officers and other executive management members. Due to non-performance, it has also received several cash injections from its shareholder to enable it to continue to deliver its services. In addition, the shareholder minister took it upon herself to amend the SABC's memorandum of incorporation, conferring upon herself the authority to appoint, suspend or even dismiss key executive members. South African Airways (SAA), in turn, has had seven CEOs in less than four years, has had to be bailed out at a cost of R550 million, and has in addition been granted a R5 billion guarantee by the shareholder for a restructuring exercise. Other SOCs such as Eskom, the Post Office and Telkom have also experienced high board and executive management turnover, perennial underperformance necessitating regular bailouts, and challenges regarding the division of power between their boards and the various shareholder ministers. Another issue that seems to plague South Africa's SOCs is the appointment of board members and executive officials with questionable qualifications. By critically examining the corporate governance challenges besetting the SABC, SAA and Eskom in particular, this article seeks to explore the root causes of the corporate governance deficiencies of SOCs, and how their corporate governance can be enhanced. It is concluded that the challenges faced by the country's SOCs are twofold: firstly, the SOCs boards' lack of appreciation of the cardinal corporate governance rules, and secondly, the role of government as a single or dominant shareholder, which results in substantial political interference in the running of the SOCs. This dual problem requires a dual solution. To arrest the problem of poor corporate governance in SOCs, government as the shareholder should firstly appoint fit and proper directors, having followed a sound due-diligence process. Once it has established such properly skilled and competent boards, however, government should adopt an arm's-length approach to the affairs of the SOCs as a way of insulating these corporations from political interference. <![CDATA[<b>Reviewing the Suitability of Affirmative Action and the Inherent Requirements of the Job as Grounds of Justification to Equal Pay Claims in Terms Of the <i>Employment Equity Act </i>55 of 1998</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100003&lng=pt&nrm=iso&tlng=pt The Employment Equity Act 55 of 1998 ("EEA") has been amended to include a specific provision dealing with equal pay claims in the form of section 6(4). Section 6(4) of the EEA prohibits unfair discrimination in terms and conditions of employment between employees performing the same or substantially the same work or work of equal value. The Minister of Labour has issued Regulations and a Code to assist with the implementation of the principle of equal pay. Both the Regulations and the Code set out the criteria for assessing work of equal value as well as the grounds of justification to a claim of equal pay for work of equal value (factors justifying differentiation in terms and conditions of employment). The EEA refers to two grounds of justification in respect of unfair discrimination claims, namely affirmative action and the inherent requirements of the job. There is support for the view that these grounds of justification are not suitable to equal pay claims. There is a contrary view that these grounds of justification can apply to equal pay claims. The Labour Courts have not had the opportunity to analyse these grounds of justification in the context of equal pay claims. It is thus necessary to analyse these grounds of justification in order to ascertain whether they provide justifications proper to equal pay claims. The purpose of this article is to analyse the grounds of justification of pay discrimination as contained in South African law, the Conventions and Materials of the International Labour Organisation and the equal pay laws of the United Kingdom. Lastly, an analysis will be undertaken to determine whether affirmative action and the inherent requirements of the job provide justifications proper to equal pay claims. <![CDATA[<b>The National Credit Act's Remedies for Reckless Credit in the Mortgage Context</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100004&lng=pt&nrm=iso&tlng=pt The National Credit Act 34 of 2005 prohibits the granting of reckless credit and also provides for certain remedies that courts can grant to consumers who have fallen victim to reckless lending practices. Depending on the circumstances, these remedies are the partial or full setting aside of the consumer's rights and obligations under the agreement; the temporary suspension of the effect of the agreement; and the restructuring of the consumer's obligations. This article investigates these remedies with a focus on the effect that they would have on a credit provider under a mortgage agreement. The argument is made that the contractual and security rights of credit providers amount to "property" for the purposes of section 25(1) of the Constitution of the Republic of South Africa, 1996 (the property clause) and that, to some degree or another, each of these remedies involves a "deprivation" (limitation or modification) of the creditor provider's rights (property). The consequence is that, when one of these remedies is granted to a consumer, the court must tailor the remedy in such a way that the effect on the credit provider is not "arbitrary" as meant in the property clause. Therefore, the proposal is that there must be a sufficient relationship between the purpose of the remedy (to discourage reckless lending and to rectify the damage caused) and the effects thereof on the credit provider. In general, the remedy should not go further than is necessary to rectify the prejudice suffered by the consumer due to the credit provider's conduct. The formulation of the remedy should accommodate considerations such as whether and to what extent either or both parties have already performed under the agreement, and it should accordingly ensure that the consumer will not be unjustifiably enriched. The remedy should also account for the effect that it would have if the consumer is permitted to keep the property that was subject to the reckless credit agreement. The article furthermore raises doubts regarding the recent high court judgment in ABSA v De Beer 2016 3 SA 432 (GP), where all the consumer's rights and obligations under a mortgage agreement were set aside due to the credit provider's reckless conduct. Remedies like this have serious consequences and therefore it is imperative that courts carefully investigate all the effects that the order would have, so that a just and reasonable outcome is achieved. This article accordingly aims to provide some guidance with reference to the principles of constitutional property law. <![CDATA[<b>In Search of the Perceived Quality and Impact of Accredited South African Law Journals: Exploring the Possibility of a Ranking System. A Baseline Study: 2009 - 2014</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100005&lng=pt&nrm=iso&tlng=pt The DHET Research Output Policy (2015) indicates that there has been a change in the government's approach to research funding. Previously all research published in any accredited journal was rewarded equally. A decision has been taken, however, that a shift will be made towards rewarding better quality and higher impact peer-review research. Additional mechanisms such as biometric/bibliometric data, including citations, assessments by discipline-specific panels of experts and/or post-publication reviews may be used to determine the quality and impact of publications. The policy notes that the DHET may distinguish between "high" and "low" impact journals after proper consultation. This article highlights the need for consultation by the legal fraternity with the DHET about the implementation of these possible mechanisms in the light of the special considerations applicable to the evaluation of law journals: most journals publish mainly local legal content, there is a limited number of active legal academics, the nature of legal research is not empirical, and a premium is placed on the writing of books. The research evaluates the available data between 2009 and 2014 in an attempt to assess if it would be appropriate to introduce a legal journal ranking system in South Africa. The article discusses direct and indirect forms of quality evaluation to inform possible ranking systems. This includes the data from the ASSAf expert panel evaluation of law journals in 2014 and other bibliometric data based on whether the journal is featured in international accredited lists, the size of its print-run, author prominence, rejection-rate, usage studies, and evaluations based on citations. An additional ranking system is considered, based on the five best outputs submitted to the National Research Foundation by applicants applying for rating. The article concludes that a law journal ranking system would be inappropriate for South Africa. None of the systems meet the minimum requirements for a trustworthy ranking of South African law journals, as the data available are insufficient, non-verifiable and not based on objective quality-sensitive criteria. Consultation with the DHET is essential and urgent to avoid the implementation of inappropriate measures of quality and impact assessment. <![CDATA[<b>Maintaining the Ecological Flows of Estuaries: A Critical Reflection on the Application and Interpretation of the Relevant Legal Framework through the Lens of the Klein River Estuary</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100006&lng=pt&nrm=iso&tlng=pt South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country's estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is contingent, however, upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary, and what one recent decision of the Supreme Court of Appeal in Abbott v Overstrand Municipality 2016 JOL 35969 (SCA) clearly illustrates is that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary's understanding and application thereof. It furthermore illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire. <![CDATA[<b>Hepple B, Le Roux R and Sciarra S (eds) <i>Laws against Strikes - The South African Experience in an International and Comparative Perspective </i>(Juta Kenwyn 2016)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100007&lng=pt&nrm=iso&tlng=pt South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country's estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is contingent, however, upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary, and what one recent decision of the Supreme Court of Appeal in Abbott v Overstrand Municipality 2016 JOL 35969 (SCA) clearly illustrates is that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary's understanding and application thereof. It furthermore illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire. <![CDATA[<b>Secher U <i>Aboriginal Customary Law: A Source of Common Law Title to Land </i>(2014 Hart Publishing Oxford and Portland Oregon)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100008&lng=pt&nrm=iso&tlng=pt This contribution provides a short review of the book by Ulla Secher Aboriginal Customary Law: A Source of Common Law Title to Land on aboriginal customary law as a source of common law title to land published in 2014. <![CDATA[<b>Hornby D, Kingwill R, Royston L and Cousins B (eds) <i>Untitled: Securing Land Tenure in Urban and Rural South Africa </i>(2017 University of KwaZulu-Natal Press)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100009&lng=pt&nrm=iso&tlng=pt This contribution provides a review of the book edited by Donna Hornby, Rosalie Kingwill, Lauren Royston and Ben Cousins, Untitled: Securing Land Tenure in Urban and Rural South Africa. It deals with the topic of land tenure in urban and rural South Africa and challenges the requirement of title deeds to secure land tenure. <![CDATA[<b>Olaniyan K <i>Corruption and Human Rights Law in Africa </i>(2016 Hart Publishing, Oxford)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100010&lng=pt&nrm=iso&tlng=pt This contribution provides a review of the book edited by Donna Hornby, Rosalie Kingwill, Lauren Royston and Ben Cousins, Untitled: Securing Land Tenure in Urban and Rural South Africa. It deals with the topic of land tenure in urban and rural South Africa and challenges the requirement of title deeds to secure land tenure. <![CDATA[<b>Neuwirth RJ, Svetlicinii A and De Castro Halis D (eds) <i>The BRICS-Lawyers' Guide to Global Cooperation </i>(Cambridge University Press 2017)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812018000100011&lng=pt&nrm=iso&tlng=pt This contribution reviews the book The BRICS-Lawyers' Guide to Global Cooperation edited by Rostam J Neuwirth, Alexandr Svetlicinii and Denis De Castro Halis. It was published by Cambridge University Press in 2017, and deals with aspects of international trade and development involving the BRICS area -Brazil, Russia, India, China and South Africa. It is described as a unique reference book for academics, governmental officials, legal professionals, business executives, researchers and students.