Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120080004&lang=en vol. 11 num. 4 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=S1727-37812008000400001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Knowledge is the key to riches</b>: <b>is the law(or anything else) protecting it adequately?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000400002&lng=en&nrm=iso&tlng=en Information has brought about a new way of thinking and trading and a new concept of what is really valuable. In the present article the author explores whether efforts to catch up in various areas of law have kept pace with these developments. In the process some nice distinctions have to be made between data, information and intelligence and the various senses in which these terms are being used, depending on the context. In the end, one has to turn to legal philosophy and concepts such as post-modernism and empiricism in order to try to find a satisfying answer. <![CDATA[<b>Competitive legal professionals' use of technology in legal pratice and legal research</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000400003&lng=en&nrm=iso&tlng=en Advances in the information and communication technologies have led to the availability of a range of primary and secondary legal research publications online via the Internet, rather than on other storing devices such as compact discs or publications in the print media. Not only has information and communication technology (ICT) impacted on the availability of legal information resources, but its effects are also noticed in various law-related areas such as legal practice management, legal education, corporate governance and the law per se. The question addressed by this article is whether the application of ICTs has an effect on the practice of law, and specifically whether informat­ion and knowledge management affects the processes of legal research in modern legal practice. Various issues are considered in this regard, including what the concept of knowledge management (KM) entails in a law firm and what the current KM trends in South African law firms are. The article investigates global trends in the application of ICTs for legal research purposes, what the specific applications of KM in support of legal research may be, how information technology applications and KM systems and strateg­ies can support the legal research process, and what the benefits of KM are to legal research. It finally discusses the impact technology has had on the skills required of competitive legal professionals. <![CDATA[<b>Personal data protection in New Zealand</b>: <b>lesson for South Africa?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000400004&lng=en&nrm=iso&tlng=en In 1995 the European Union adopted a Directive on data protection. Article 25 of this Directive compels all EU member countries to adopt data protection legislation and to prevent the transfer of personal data to non-EU member countries ("third countries") that do not provide an adequate level of data protection. Article 25 results in the Directive having extra-territorial effect and exerting an influence in countries outside the EU. Like South Africa, New Zealand is a "third" country in terms of the EU Directive on data protection. New Zealand recognised the need for data protection and adopted a data protection Act over 15 years ago. The focus of this article is on the data protection provisions in New Zealand law with a view to establishing whether South Africa can learn any lessons from them. In general, it can be said that although New Zealand law does not expressly recognise a right to privacy, it has a data protection regime that functions well and that goes a long way to providing adequate data protection as required by the EU Directive on data protection. Nevertheless, the EU has not made a finding to that effect as yet. The New Zealand data protection act requires a couple of amendments before New Zealand might be adjudged ‘adequate'. South Africa's protection of the right to privacy and identity is better developed and more extensive than that of New Zealand. Privacy is recognised and protected in the law of delict and by the South African Constitution. Despite South Africa's apparently high regard for the individual's right to privacy and identity and our well-developed common and constitutional law of privacy, South Africa does not meet the adequacy requirement of the EU Directive, because we do not have a data protection Act. This means that South African participants in the information technology arena are at a constant disadvantage. It is argued that South Africa should follow New Zealand's example and adopt a data protection law as soon as possible. <![CDATA[<b>Non-standard workers</b>: <b>the South African context, international law and regulation by the European Union</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000400005&lng=en&nrm=iso&tlng=en The current labour market has many forms of employment relations that differ from full-time employment. "Atypical," "non-standard," or even "marginal" are terms used to describe these new workers and include, amongst others, part-time work, contract work, self-employment, temporary, fixed-term, seasonal, casual, piece-rate work, employees supplied by employment agencies, home workers and those employed in the informal economy. These workers are often paid for results rather than time. Their vulnerability is linked in many instances to the absence of an employment relationship or the existence of a flimsy one. Most of these workers are unskilled or work in sectors with limited trade union organisation and limited coverage by collective bargaining, leaving them vulnerable to exploitation. They should, in theory, have the protection of current South African labour legislation, but in practice the unusual circumstances of their employment render the enforcement of their rights problematic. The majority of non-standard workers in South Africa are those previously disadvantaged by the apartheid regime, compromising women and unskilled black workers. The exclusion of these workers from labour legislation can be seen as discrimination, which is prohibited by almost all labour legislation in South Africa. This contribution illustrates how the concept of indirect discrimination can be an important tool used to provide labour protection to these workers. The purpose of this article is to explore the scope of the extension of labour rights to non-standard workers in the context of South African labour laws and the international framework. <![CDATA[<b>Contentious issues arising from payments made in full and final settlement</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000400006&lng=en&nrm=iso&tlng=en Payments made in full and final settlement have on several occasions presented interpretative difficulties for our judiciary, as will become apparent from this case discussion: Be Bop A Lula Manufacturing & Printing v Kingtex Marketing 2008 3 SA 327 (SCA). The Supreme Court of Appeal reversed the judgments of the trial court and the appeal court (full bench of the Cape Provincial Division) which were in favour of the creditor. In such cases, the essential enquiry is whether an agreement of compromise exists. A transactio or compromise (in the form of a legal agreement) exists where the relevant parties agree to settle previously disputed or uncertain obligations. Like any other agreement, a compromise is based on the contractual rules of offer and acceptance. The first material enquiry in this case wherein the debtor delivered the cheque payment to the creditor (in full and final settlement of the account), is whether 1) an intended offer of compromise exists; or 2) did the debtor merely intend to make payment towards an admitted liability. The court in the Be Bop (SCA) case came to the correct finding that an offer of compromise existed. Whilst the judgment is brief, the finding itself gives practical recognition to the principle that admission of liability for a specific amount, accompanied by payment (in full and final settlement), may still be accompanied by an intended offer of compromise, instead of merely making payment towards an admission of liability. <![CDATA[<b>Socially Responsible Investment Law</b>: <b>Regulating the Unseen Polluters</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812008000400007&lng=en&nrm=iso&tlng=en Payments made in full and final settlement have on several occasions presented interpretative difficulties for our judiciary, as will become apparent from this case discussion: Be Bop A Lula Manufacturing & Printing v Kingtex Marketing 2008 3 SA 327 (SCA). The Supreme Court of Appeal reversed the judgments of the trial court and the appeal court (full bench of the Cape Provincial Division) which were in favour of the creditor. In such cases, the essential enquiry is whether an agreement of compromise exists. A transactio or compromise (in the form of a legal agreement) exists where the relevant parties agree to settle previously disputed or uncertain obligations. Like any other agreement, a compromise is based on the contractual rules of offer and acceptance. The first material enquiry in this case wherein the debtor delivered the cheque payment to the creditor (in full and final settlement of the account), is whether 1) an intended offer of compromise exists; or 2) did the debtor merely intend to make payment towards an admitted liability. The court in the Be Bop (SCA) case came to the correct finding that an offer of compromise existed. Whilst the judgment is brief, the finding itself gives practical recognition to the principle that admission of liability for a specific amount, accompanied by payment (in full and final settlement), may still be accompanied by an intended offer of compromise, instead of merely making payment towards an admission of liability.