Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120150007&lang=pt vol. 18 num. 7 lang. pt <![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=S1727-37812015000700001&lng=pt&nrm=iso&tlng=pt <![CDATA[<b>Realisation of a child's right to a basic education in the South African school system: Some lessons from Germany</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700002&lng=pt&nrm=iso&tlng=pt Education has, since the beginning of time, been regarded as the formal process by which society conveys its accumulated knowledge, skills, customs and values from one generation to another. Today, education is a human right, and the right to education and specifically the right to (a) basic education is acknowledged and emphasised worldwide. In South Africa the right to a basic education is entrenched in the Constitution of the Republic of South Africa, 1996 and is regarded as one of the most crucial constitutional rights, particularly because it promotes economic and social well-being. However, the South African school system is crippled by a myriad of unfavourable challenges, situations and circumstances which will be discussed throughout the article. Many of these challenges, situations and circumstances are frustrating and solutions have been sought diligently - many with success and many without success. The focus in this article falls on the questions of whether the current South African school system sufficiently realises the constitutional rights of learners and whether an alternative school system could lead to the increased fulfilment and realisation of South African children's rights (with a specific focus on the rights to a basic education, equality and dignity). The article therefore deals with the "acceptability" of the South African school system. A comparative analysis with Germany will be done and the German school system will be used as a valuable framework in order to propose an alternative school system for South Africa. <![CDATA[<b>Court supervised institutional transformation in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700003&lng=pt&nrm=iso&tlng=pt The traditional adversarial model of litigation in South Africa operates on the basis that two or more parties approach the court, each with its own desired outcome. The court is then obliged to decide in favour of one of the parties. A different model of litigation is emerging in South African law. This model involves actions against public institutions that are failing to comply with their constitutional mandate. In this type of litigation there is seldom a dispute regarding the eventual outcome that is desired. Both the applicant and the state, in its capacity of the respondent, have a broad consensus about the manner in which the institution should operate or be transformed. There is accordingly agreement regarding the eventual outcome and the shortcomings that should be addressed. The primary issue relates to the details of the implementation of the transformation of the institution in question, in order that the constitutional mandate of the institution in question will be met. An example of this form of litigation can be seen in litigation concerning the conditions in which prisoners are detained in South African prisons. The constitutional mandate for the imprisonment of offenders is contained in the Correctional Services Act. Ongoing human rights violations often take place in prisons. These include staff shortages, shortages of medical staff and facilities, prison overcrowding, inadequate staff development, the prevalence of HIV/AIDS, infrastructure defects and maintenance problems, gangsterism, requests for prisoner transfers and problems associated therewith, the ineffectiveness of parole boards, staff development needs that are not addressed, an excessive focus on security, lack of rehabilitation and vocational training programmes and assaults of prisoners. The courts have on occasion issued a structured interdict as an appropriate remedy. However, problems arise when violations are widespread and no single order can cause the problems to be properly addressed or where the executive fails to implement or even ignores court orders. Thus, the wrong which is complained of is not a wrong done to a particular person, but the constitutional wrong is the manner in which the institution executes its mandate vis-a-vis the vulnerable beneficiaries of the public service in question. The transformation thereof is designed to bring the institution within its constitutional duties and bounds. There is usually no dispute about the failures of the organisation and court orders are often taken by consent. The question which arises is how it can be ensured that a public institution such as a school, welfare department, hospital for the mentally disabled, home for the elderly or prison, which is designed to serve or accommodate the vulnerable may be brought into conformity with its constitutional mandate where there are continual and persistent failures to do so. Even where court orders are obtained, there are often significant problems with the implementation thereof. In the case of prisons, a possible solution, which has been employed in the United States of America and which may be adapted for use in the South African context, is that of a post-trial special master or court appointed supervisor, who supervises the transformation of the public institution until such time as the non-compliance has been appropriately resolved. In this article the role and functions of the American special master will be set out. The feasibility of importing such an office into the South African context will be evaluated. <![CDATA[<b>Rethinking <i>terra nullius and </i>property law in space</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700004&lng=pt&nrm=iso&tlng=pt With a new era dawning with regard to access to space and an increase in the number of nations capable of reaching and exploiting space, the field of space law as a whole needs to be re-evaluated. One such area where current legal thinking needs to be examined is with regard to the property rights to objects in space. While it was sufficient in the past for governments to frown upon the institutions of ownership in outer space and leave many space-related issues unresolved, one would need to re-examine the current body of space-law and related international instruments in the light of the ability of private enterprises' and other new players' ability to partake in and commercially exploit space travel. This paper investigates whether property rights should be available to space-faring nations and individuals, as well as how these rights could be acquired. Also very important is how these rights could be limited or structured in such a way as not to unnecessarily interfere with the aims of current space law. Characteristics such as the impersonality, tangibility, independence, susceptibility to control, and the usefulness and value for mankind of an object in space will once again be of crucial importance when it is necessary to determine if it can be classified as an object with regard to which one can have property rights. This is discussed against the background of objects that are deemed to be res nullius (things belonging to nobody) as well as the theory of terra nullius (land belonging to nobody). <![CDATA[<b>Introduction to virtual property: <i>Lex virtualisipsa loquitur</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700005&lng=pt&nrm=iso&tlng=pt This article serves as an introduction to the concept of virtual property and also to very briefly note the relevance of virtual property in modern society. A universally accepted definition of virtual property is hard to come by, but the paper will aim to provide some clarity on the issue. Virtual property is still property, and it still exists even though it is intangible. It includes (amongst other things) website addresses and email addresses as well as certain other accepted immaterial property objects such as bank accounts, stocks, options and derivatives. Indeed, one can go so far as to include digital goods, such as digital versions of books (e-books), computer or smartphone programmes or apps, television series and movies as well as digital music (albums and tracks) as objects of virtual property. However, the focus in this paper is on the type of virtual property found inside virtual worlds. The discussion of virtual property will be facilitated by reference to some of the ancillary and more complicated areas of the field to serve as a point of reference leading to an understanding of the concept of virtual property in general. <![CDATA[<b>The universal jurisdiction of South African criminal courts and immunities of foreign State officials</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700006&lng=pt&nrm=iso&tlng=pt Under the "complementarity" regime of the Rome Statute of the International Criminal Court (ICC), the jurisdiction of the ICC is secondary to the jurisdiction of domestic courts. States Parties, not the ICC, have the primary responsibility of investigating and prosecuting international crimes. The ICC acts only when States are "unable" or "unwilling" to prosecute. As a State Party, in order to give effect to the complementarity principle, South Africa enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which determines the modalities of prosecuting perpetrators of the crimes of genocide, crimes against humanity and war crimes in South African courts. The Implementation Act also provides that South African courts will have jurisdiction over these crimes not only when they are committed on the territory of South Africa but also when they are committed outside the Republic. By granting South African courts jurisdiction over a person who commits a crime outside the Republic when that person is later found on South African territory, without regard to that person's nationality or the nationality of the victims, the Implementation Act empowers South African courts with universal jurisdiction over international crimes. This paper seeks to determine whether and to what extent foreign State officials, such as foreign heads of State, heads of government and ministers of foreign affairs, can plead immunity when they are accused of international crimes before South African courts when exercising their universal jurisdiction in terms of the Implementation Act and in accordance with the complementarity regime of the Rome Statute. In other words, the article endeavours to determine whether international law rules regarding immunities of State officials may or may not limit the ability of South African courts to exercise universal jurisdiction over international crimes committed in foreign States. <![CDATA[<b>The Bald and Golden Eagle Protection Act, species-based legal protection and the danger of misidentification</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700007&lng=pt&nrm=iso&tlng=pt The Bald and Golden Eagle Protection Act of 1940 bestows legal protection on two North American eagle species in the United States of America. The Act was originally aimed at the legal protection of only one species: the Bald Eagle Haliaeetus leucocephalus, the national symbol of the USA. Later the Act was amended to extend protection also to the Golden Eagle Aquila chrysaetos. The Bald Eagle was an Endangered Species, but the Golden Eagle was not formally listed as Endangered nationwide in the USA. One of the reasons for extending legal protection to the Golden Eagle under the Act was to strengthen the legal protection of the Bald Eagle, because immature Bald Eagles were being misidentified as Golden Eagles and shot. Additional factors relating to Golden Eagle mortality also made legal protection of the Golden Eagle desirable. The danger that a rare and legally protected species can be misidentified and mistaken for a more common and unprotected species can therefore serve as a reason for bestowing legal protection on the more common species as well. Other factors may also indicate that legal protection of the more common species is desirable, making the case more compelling. If this line of reasoning is applied in respect of South African birds of prey, a strong case can be made in favour of extending legal protection under the national biodiversity legislation to more species than the small number of species currently enjoying such protection. Species that are listed as Vulnerable under South African national biodiversity legislation may be misidentified as species that are not subject to such protection. Additional factors are also present that make such an extension of legal protection desirable. <![CDATA[<b>Protecting the foundation and magnificent edifice of the legal profession: Reflections on <i>Thukwane v Law Society of the Northern Provinces </i>2014 5 SA 513 (GP) and <i>Mtshabe v Law Society of the Cape of Good Hope </i>2014 5 SA 376 (ECM)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700008&lng=pt&nrm=iso&tlng=pt The High Court decisions in Thukwane v Law Society of the Northern Provinces 2014 5 SA 513 (GP) and Mtshabe v Law Society of the Cape of Good Hope 2014 5 SA 376 (ECM) dealing with the question whether a parolee could be considered a "fit and proper person" to be admitted and readmitted to the roll of attorneys raise important and interrelated issues demanding definitive and systematic consideration. This contribution seeks to isolate some of the vexed questions concerning the novel issue of whether a person previously convicted of a criminal offence and who is still serving a sentence under a parole could be admitted and/or readmitted to the roll of legal practitioners. Thukwane and Mtshabe demonstrate that the admission or readmission must not be damaging to the integrity and standing of the profession, the judicial system, or the administration of justice, or be contrary to the public interest. It is trite that public confidence in the legal profession is more important than the fortunes of any one practitioner or prospective practitioner. <![CDATA[<b>When the judiciary flouts separation of powers: Attenuating the credibility of the National Prosecuting Authority</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700009&lng=pt&nrm=iso&tlng=pt The stature of the National Prosecuting Authority (NPA) has been subverted through highly publicised political interference by the executive. Beginning with the marathon legal entanglements of the current South African president the decisions of sitting National Directors of Public Prosecutions (NDPP) on high-profile criminal matters, particularly those involving prominent members of the political leadership, have been marred with controversy. Undoubtedly unwarranted intrusion into the prosecutorial domain, at the behest of key political protagonists, has blighted the repute of the NPA. The judiciary too has played a pivotal, if lesser role, in eroding the sagging reputation of the NPA. This article charts the narrative of judicial influence on the diminishing credibility of the NPA, using selected cases from the recent past. It shows that key political events such as the Zuma corruption saga have placed the judiciary together with political forces at centre stage where the focus is their culpability for exceeding their lawful mandate. Finding itself vulnerable as a result of its being the target of rhetoric casting doubt on its integrity and threatening its independence, the judiciary (through a crucial judgment) entered the political fray and positioned itself behind what it judged to be the pervasive political sentiment of the day. The article examines whether, subsequently, in an effort to curb undue political influence of the executive on the NPA, the Constitutional Court in Democratic Alliance v President of South Africa interpreted and extended judicial authority in a manner that violated the doctrine of separation of powers. Furthermore, the article argues that in Freedom Under Law v National Director of Public Prosecutions the court again misconstrued its powers by unduly interfering with the discretionary decision-making powers of the NDPP. These cases illustrate that, once they have been issued, the far reaching consequences of judicial decisions may not be erased by corrections during the appellate process. Far from being an impartial adjudicator, the judiciary has played a significant role in attenuating the stature of the NPA. <![CDATA[<b>The viability and constitutionality of the South African National Register for Sex Offenders: A comparative study</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700010&lng=pt&nrm=iso&tlng=pt Section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 established a National Register for Sex Offenders where the particulars of all offenders guilty of sexual transgressions against children or mentally-ill persons have to be included, regardless of whether they were found guilty before or after the coming into force of the Act. Although the purpose of the Act clearly is to protect and promote the constitutional rights of victims and society in general, it is apparent that the register may infringe on the rights of sexual offenders. The inclusion of the personal details of sex offenders in a register without their permission and sometimes without their knowledge amounts to a violation amongst other rights of the right to privacy stipulated in section 14 of the Constitution of the Republic of South Africa, 1996. In this article the constitutionality of the South African register will be examined by means of a comparative study with the United States and United Kingdom, where similar registers are already in place. This legislative assessment will also provide answers as to the viability of the South African register. It is argued that South Africa's sex offender registration system may not fulfil the function it was designed for because of misconceptions as well as serious implementation and administrative issues; and that alternative solutions may be more suitable in this regard. <![CDATA[<b>A critique of the Unemployment Insurance Amendment Bill, 2015</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700011&lng=pt&nrm=iso&tlng=pt The contribution critically reflects on the proposed amendments to the Unemployment Insurance Act Act 63 of 2001 (the UIA / the Act), introduced via the provisions of the Unemployment Insurance Amendment Bill of 2015 (B25-2015). Several shortcomings and deficiencies are addressed and improvements introduced by the proposed amending legislation, including the extension of coverage to a wider range of beneficiaries, the extension of the period of benefits (to a maximum of 365 days), the increase of the rate of maternity benefits of a (female) contributor's earnings, the adjustment of the accrual rate of a contributor's duration of benefits from 1 day for every 6 days of employment to 1 day for every 5 days of employment, and some attempt to provide for employment retention and the reentry of unemployed contributors into the labour market. And yet, despite these important contributions to the development of unemployment insurance in South Africa, several matters appearing from the Bill point towards inconsistent, inadequate and inappropriate treatment of core elements of the unemployment insurance system. Recommendations have been made to address these matters, which among others relate to: • Unclear or absent provisions in relation to the coverage and/or application of the UIA in relation to public servants, migrant workers, and the self- and informally employed; • Inadequate provision for employment promotion, the prevention, combating and reduction of unemployment, and reintegration into employment; • Inappropriate provisions relating to benefit rates and periods, among others concerning the Minister's power to set/amend the Income Replacement Rate and to vary the benefit period by regulation; • Inconsistent and discriminatory provisions requiring a 13-week qualifying period for accessing maternity benefits; • Inappropriate provisions regarding dependants' benefits, including the strengthening of the existing claims hierarchy in favour of spouses and life partners at the expense of children; • The absence of an independent appeal institution; and • Poorly formulated provisions, with evident discord between the provisions of the Bill and the Memorandum settings out its objectives. <![CDATA[<b>Clinical legal education models: Recommended assessment regimes</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700012&lng=pt&nrm=iso&tlng=pt Clinical legal education (CLE) forms part of the LLB curriculum at most South African Universities. There are many similarities in the approach to CLE, but often also many differences. The clinical models of four South African university law clinics are reviewed in an effort to find suitable models. It is indicated that formulating a mission for the law clinic will have a direct impact on the clinical model chosen. The integration of CLE courses into the core curriculum of the law school will reveal CLE's value as a teaching methodology. Pedagogic aims can be set and achieved as CLE has intellectual worth in that it enables students to better understand concepts and principles of law and the application thereof in practice. It is therefore recommended that CLE courses be mandatory. The pedagogy of CLE is comprised of three basic components, namely clinical experience, tutorial sessions, and classroom instruction. The extent to which these three components find application in the four South African university law clinics under review is indicated. The principles of assessment are stated. Assessment methods appropriate for application in CLE courses, as indicated in a comprehensive study of the topic,¹ are discussed as to their applicability to CLE courses in the South African environment. <![CDATA[<b><i>RAF v Sweatman </i></b><b>(162/2014) [2015] ZASCA 22 (20 March 2015). A simple illustration of the SCA's statutory misinterpretation of section 17(4)(c) of the Road Accident Fund Act 56 of 1998</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000700013&lng=pt&nrm=iso&tlng=pt In Road Accident Fund v Sweatman (162/2014) [2015] ZASCA 22 (20 March 2015) (hereafter Sweatman) the Supreme Court of Appeal was faced with the interpretation of section 17(4)(c) of the Road Accident Fund Act 56 of 1998 (the "cap provision"). The purpose of this note is to assess the court's interpretation of the "cap provision" to determine whether this interpretation is sound. This is achieved by explaining the purpose of the Road Accident Fund and the Amendment Act. Thereafter the general method of calculating loss of income is explored, together with the different interpretations of the "cap provision" and the application thereof. The abovementioned decision of the SCA on the most appropriate interpretation is then critically analysed. It is argued that the court, in Sweatman, misunderstood the implication of its decision and was therefore incapable of interpreting the provision correctly. The effect is that one of the primary purposes of the Amendment Act is circumvented.