Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120090001&lang=en vol. 12 num. 1 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=S1727-37812009000100001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Monitoring, interception and Big Boss in the workplace</b>: <b>is the devil in the details?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000100002&lng=en&nrm=iso&tlng=en This article discusses the opposing dynamics in the modern workplace environment, specifically employeesÂ’ expectations of e-privacy and employersÂ’ interception and monitoring of electronic communications. In terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 employees must take prior notice of or consent to the interception and monitoring of their e-communications. The article focuses on the extent to which click-wrap agreements and hypertext or XML links to e-workplace policies could meet these requirements. <![CDATA[<b>A commentary on the positive discrimination policy of India</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000100003&lng=en&nrm=iso&tlng=en Affirmative action and discriminatory measures are complex and controversial issues. The goal of affirmative action is to speed up the creation of a representative and equitable workforce and to assist those who were historically disadvantaged by unfair discrimination to fulfil their maximum potential. The term invokes emotions that range from fear and rage to satisfaction. Affirmative action has encouraged an ongoing debate regarding the legal, moral and economic questions arising from the preferential treatment of certain groups of people in society. Underlying this debate are various concerns about the notion of reverse discrimination or the unfair disadvantage to individuals who bear no responsibility for past or present discrimination practised by others. This article states the current position with regard to the caste system and the reservation of jobs in the Republic of India in the context of affirmative action and the achievement of equality in the workplace. Its purpose is to highlight the extreme division of opinion about what is socially acceptable, namely, caste. Further, it provides the reader with an understanding of the need for affirmative action in the first place in India, and thereby creates a powerful tool for understanding discrimination and the need for affirmative action measures. Another goal is to provide useful guidelines and information to all persons involved in implementing affirmative action programmes. It serves to show that if affirmative action measures and/or discriminatory measures are not properly thought out then affirmative action becomes burdensome and even more discriminatory, rather than being a means of achieving equality and redressing past wrongs. <![CDATA[<b>A very long engagement</b>: <b>the children's act 38 of 2005 and the 1993 hague convention of children and cooperation in respect of intercountry adoption</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000100004&lng=en&nrm=iso&tlng=en This article analyses the intercountry adoptions provisions contained in Chapter 16 of the Children's Act 38 of 2005, against the standards of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoptions, 1993. After a brief overview of the two leading South African cases on intercountry adoption, which stress the importance of having this institution statutorily regulated, the author proceeds to analyse the most significant clauses pertaining to intercountry adoptions contained in the Act, in order to identify the strengths and weaknesses in this new statutory framework. The author concludes that the Children's Act is a dramatic improvement on the current regime of intercountry adoptions and that it has the potential to make this institution work in the best interests of children. <![CDATA[<b>Reflections on the biowatch dispute</b>: <b>reviewing the fundamental rules on cost in the light of the needs of constitutional and/or public interest litigation</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000100005&lng=en&nrm=iso&tlng=en Using as a case study the recent decision on costs in the Biowatch matter, this article critically examines the traditional fundamental rules on costs in the light of the needs of constitutional and a fortiori public interest litigation. The fundamental rules on costs are taken to include the two traditional principles (that costs are a matter of judicial discretion and that to a successful party should be awarded his costs), the requirement that the discretion be exercised judicially, the test for interference in costs orders in a court of appeal, and the characterisation of costs orders as requiring the exercise of only a narrow discretion on appeal. In the light of the decisions in the Biowatch matter it is argued that the current rules do not meet the new needs of constitutional and/or public interest litigation as regards access to justice, equal protection and benefit of the law, proportionality, and the accountability of the judiciary. Suggestions are made for possible reform. <![CDATA[<b>"The show must go on!" Liability when it comes to drama students when injured while in training</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000100006&lng=en&nrm=iso&tlng=en This article emphasises the uncertainty in the relationship between a student undergoing practical training and his/her lecturer or university, if the student should be injured and wants to claim compensation. One must first establish whether the student can be described as an employee of the lecturer or university, or as a vocational worker or independent contractor. Once the status of the student has been established, the relevant legislation can be determined, whether it is the Labour Relations Act or the Basic Conditions of Employment. It is, however, not that simple and a person in the capacity of a student does not accord with the definition of an employee or an independent contractor or a vocational worker. One will have to rely on the assumption in section 83A in the Basic Conditions of Employment that a student is an employee when he does practical training for the benefit of the university. The Occupational Health and Safety Act requires employers to assure that the workplace is a safe environment for employees, with the minimum risks involved. The Compensation for Occupational Injuries and Diseases Act makes it possible for an employee to claim compensation when such a risk becomes a reality. This article also tries to compare the situation of a student sports person injured while participating in university sports, and a drama student injured during a performance or rehearsal of a play. It is stated that the relationship between the drama student and lecturer is similar to the relationship between a sports person and his/her coach, but the relationship differs in that a sports person's risk of getting hurt is much greater than that of a drama student, The contracts between sports players and their authorities are also stipulated in much more detail than the contracts (if any) between the drama students and the university. It is concluded that the legislation is not clear on the specific matters where a student undergoes practical training while they are still studying. The suggestion is that a sectoral determination must be put in place to regulate the relationship, the remuneration, the working hours and the working conditions and risks involved