Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120080003&lang=en vol. 11 num. 3 lang. en <![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=S1727-37812008000300001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Contemporary legal issues in electronic commerce in Nigeria</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000300002&lng=en&nrm=iso&tlng=en The Internet has no doubt added a great deal to the quality of human life today. It has knitted the world together as a global village. Many difficulties which hampered international and even national commercial transactions in the past have now been consigned to the dust-bin of history. The emergence of electronic commerce is as a result of the creation of the internet, through which commercial transactions are conducted between parties from different parts of the world and who may never see themselves in their lifetimes. However, the emergence of electronic commerce has also brought with it a number of legal and socio-economic problems, especially in the developing nations such as Nigeria - problems which pose significance challenges to the legal regime of electronic commerce in those countries. This paper examines these legal issues within the context of the current legal and regulatory framework for electronic commerce in Nigeria. <![CDATA[<b>The establishment of kingdoms and the identification of kings and queens in terms of the traditional leadership and governance framework act 41 of 2003</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000300003&lng=en&nrm=iso&tlng=en The Traditional Leadership and Governance Framework Act 41 of 2003 provides, amongst others matters, for the recognition of kings and queens and the establishment of a Commission on Traditional Leadership Disputes and Claims to decide on disputes and claims relating to traditional leadership, including kings and queens. The author examines the criteria and procedure for the creation of kingdoms and for identifying the rightful incumbents. During the apartheid years the traditional leadership was manipulated for political purposes. The Act goes a long way towards restoring it to conform to precepts of customary law and custom. The author argues, in essence, that this is easier said than done. It would, he submits, be difficult to dismantle the apartheid structures. It would likewise be difficult to identify the rightful incumbents and to resolve new claims. He suggests that the relevant provisions of the Act be revised to provide more clarity on fundamental principles. <![CDATA[<b>The influence and status of international law in the constitutional systems of some east and middle European transformation states</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000300004&lng=en&nrm=iso&tlng=en Some twenty years ago, the importance of international law, particularly for practical purposes, could be described as marginal in national legal orders in the socialist Central and Eastern European (CEE) Countries. The main reason for this was the dualist approach in regard to international law. Fundamental political and economic changes, such as the Velvet Revolution in Czechoslovakia, marked the end of the cold war and the beginning of a transition process. The changes in national legal orders have been accompanied by substantial modifications in the area of constitutional law, mostly resulting in the adoption of entirely new or radically modified constitutions. This is true also for the Czech Republic, Slovakia, Poland and the Russian Federation. One of the most remarkable common characteristics of the new constitutions of the CEE countries is the shift from a dualistic approach to a broad openness to international law. Despite this common feature the manifestation of this openness cannot be regarded as uniform - the methods used by states to deal with international law and to ensure the conformity of the domestic legal order with their international obligations vary. The common denominator of the constitutional orders under review is the fact that the rules of international law are considered to be a part of their national * Prof Dr Mahulena Hofmann, CSc, ist Inhaberin des Jean-Monnet-Lehrstuhls für Europarecht und Transformationsforschung an der Justus-Liebig-Universität Gießen; ref iur Martin Faix war wissenschaftlicher Mitarbeiter an derselben Professur und zur Zeit PhD-Kandidat an der Karls Universität zu Prag. legal orders. General provisions concerning the relationship between national law and international law can be found in the Czech, Russian and Polish constitutions, but not in the Slovak constitution. The common feature of all four constitutional texts is that they take a clear position on the status of treaties, stipulating conditions (approval by parliament, promulgation, etc) under which a treaty or certain categories of treaties (eg as listed by Article 49 of the Czech Constitution) will be considered to be part of the national legal order, as well as the hierarchical status of treaties in the case of a conflict with national law. In all four countries under consideration, the rank of treaties lies between the level of the Constitution and that of ordinary parliamentary statutes. The situation is considerably different in regard to the role of customary international law: only the Russian Constitution includes not only treaties but also customary international law in the legal order. Nevertheless, Slovak, Czech and Polish constitutional provisions stipulate the commitment of the states to fulfil their obligations under international law, including customary international law. Even though legally binding, these provisions are not identical with general provisions incorporating certain categories of international law as stated above. The openness to international law is demonstrated also by the inclusion of provisions pursuant to which states can transfer certain powers to international organizations. (Such provisions were included in the constitutions of e.g. Slovakia, Poland and the Czech Republic in the context of their integration into the EU for the purpose of ensuring the direct application of Community law.). Thus, if considering the formal openness to international law, a high degree of willingness to open the domestic legal orders to international law can be discerned in the constitutional systems of the states under review. However, the extent of constitutional provisions on the relation of a particular state to international law does not necessarily strengthen its application in practice, as can be observed in the legal order of the Russian Federation. When determining the factual status of international law and its incorporation in the domestic legal orders of the CEE countries, the judicial practice of national courts is of great importance, in particular the judicial practice of constitutional courts. The question of the role of international law in the decisions of constitutional courts appears to be even more interesting because of the fact that implementation of constitutional jurisdiction belongs to one of the most important innovations of CEE transition countries after the end of the cold war. Their broad competencies in respect to international law can be seen as an additional indicator of the openness of their legal orders towards supranational legal rules. International law plays an important role not only as a subject of judicial review but also as a criterion of constitutionality applied in national procedures before the constitutional courts. The extensive jurisprudence of national constitutional courts based on international law is to a large extent characteristic of the CEE Countries. Their constitutional courts often rely on international law, especially human rights, when reviewing the constitutionality of domestic acts. This underlines the fact that general constitutional provisions on international law do not remain only a ‘dead letter.’ However, when demonstrating their openness towards international law, constitutional courts sometimes exceed the limits of their competences, as can be observed e.g. in the case of the Czech Constitutional Court. (Despite the fact that the changes introduced by the Constitution in 2001 caused it to lose the competence to use international law as a criterion for its decisions, the Court continued to base its decisions partly on international law.). Generally it can be argued that the acceptance of international law is remarkably high in the legal orders of the countries under review - in particular when taking into consideration the relatively short time which was needed not only to formally ensure the role of international law, but also to ensure its implementation in practice, most notably in the judicial practice of constitutional courts. This does not mean, however, that there are no difficulties which have to be solved in the future. The application of customary international law by national courts is an example of this. However, the opening of national legal systems of the formerly totalitarian states towards international law has undoubtedly had a positive influence on the process of their transformation towards the rule of law. <![CDATA[<b>Section 2(3) of the wills act 7 of 1953</b>: <b>a practical problem in litigation</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000300005&lng=en&nrm=iso&tlng=en When considering applications in terms of section 2(3) of the Wills Act 7 of 1953, one is confronted with the practical problem that a document may be accepted as a will in terms of section 2(3) but from the facts it may appear that the deceased may not have had the necessary testamentary capacity or free will to make a will. One option to approach this problem would be for the respondent in a section 2(3) application to bring a counter-application on the grounds of the deceased’s lack of capacity or his lack of free will. Another option would be to consider the deceased’s capacity before considering the section 2(3) requirements, but one cannot consider capacity before one has a valid will, and the court’s interpretation of section 2(3) in Bekker v Naudé 2003 5 SA 173 (CC) prevents this route. A third option would be for the court to mero motu consider the deceased’s capacity to make a will when faced with a section 2(3) application. This approach would be in accordance with public policy. If all of these approaches are unsatisfactory, the legislature should consider an amendment to the Act. <![CDATA[<b>Beyond public participation: the disjuncture between South Africa's environmental impact assessment (eia) law and sustainable development</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000300006&lng=en&nrm=iso&tlng=en One of the key strategies for achieving sustainable development is the use of the process of evaluating the potential environmental impacts of development activities. The procedure of environmental impact assessment (EIA) implements the principle of integration which lies at the core of the concept of sustainable development by providing a process through which potential social, economic and environmental impacts of activities are scrutinised and planned for. Sustainable development may not be achieved without sustained and legally mandated efforts to ensure that development planning is participatory. The processes of public participation play a crucial role in ensuring the integration of the socio-economic impacts of a project into the environmental decision-making processes. Public participation is not the only process, nor does the process always ensure the achievement of sustainable development. Nevertheless, decisions that engage the public have the propensity to lead to sustainable development. The public participation provisions in South Africa’s EIA regulations promulgated under the National Environmental Management Act 107 of 1998 show a disjuncture between the idea of public participation and the notion of sustainable development. The provisions do not create a framework for informed participation and leave a wide discretion to environmental assessment practitioners (EAPs) regarding the form which participation should assume. In order for environmental law, specifically EIA laws, to be effective as tools to promote sustainable development the laws must, among other things, provide for effective public participation. The judiciary must also aid in the process by giving content to the legal provisions on public participation in the EIA process. <![CDATA[<b>Should the real agreement be subjected to formalities?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000300007&lng=en&nrm=iso&tlng=en No formalities are required in South African law in respect of the real agreement relating to the transfer of ownership in immovable property. The agreement is, for example, derived from surrounding circumstances, such as the fact that the parties concluded an obligatory agreement which is aimed at the transfer of property, or the fact that the transferor has signed a power of attorney, or the fact that the transferee has paid transfer duty. However, this circumstantial evidence is not conclusive proof that an agreement to transfer property has in fact been concluded. The transferor might have signed the power of attorney, for example, while he was erroneously under the impression that he was signing an option, or the transferee might refuse to take delivery because the property does not correspond to the thing agreed upon. In each situation neither of the parties has the intention to transfer property, and ownership could therefore not be transferred. Yet registration is possible even in the absence of a valid real agreement. This may result in an incorrect register because the person who is indicated as the owner is in fact not. It therefore appears that there is a deficiency in South African law with regard to land registration and a need for greater certainty regarding the question as to whether or not a real agreement has in fact been concluded. In this paper two solutions are explored: (1) the defect can be rectified by requiring the parties to appear (either in person or by a representative) before a conveyancer and to declare that they respectively intend to transfer and obtain property, as is the case in the Netherlands and Germany. The conveyancer should reduce the agreement to writing and the document by which the parties are bound should then be lodged with the registrar as proof of the real agreement; (2) the real agreement may be incorporated into the deed of transfer. Any one of these proposals will remove any doubt regarding the existence of the real agreement and will ensure that the register reflects the true legal position.