Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120090002&lang=en vol. 12 num. 2 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=S1727-37812009000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>The judiciary as a bastion of the legal order in challenging times</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000200002&lng=en&nrm=iso&tlng=en <![CDATA[<b>Aspects of land administration in the context of good governance</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000200003&lng=en&nrm=iso&tlng=en Recent international developments have emphasised the importance of good governance in land administration. Good governance practices are inter alia predictable, open and enlightened policy-making; accountable and transparent processes; a professional ethos that combats corruption, bias, nepotism and personal gain; and strict financial control and management of funding. This paper explores aspects of land administration where public funding and interests necessitate the application of good governance practices. The South African land reform programme is divided in three sub-programmes, namely land restitution, land redistribution and tenure reform. Land reform is a vast subject, based on policy, legislation and case law. Therefore it is impossible to deal with good governance principles over the wide spectrum of land reform. Special attention is however given to the land restitution programme in terms of the Restitution of Land Rights Act 22 of 1994and tenure reform in the rural areas by means of the Communal Land Rights Act 11 of 2004. The purpose is not to formulate a blueprint for good governance or to indicate which good governance principles will solve all or most of the land tenure problems. It is rather an effort to indicate that policies and procedures to improve good governance in some aspects of land reform are urgently needed and should be explored further. The three land tenure programmes have been introduced with some degree of success. Legislation promulgated in terms of these programmes, especially the Restitution of Land Rights Act and the Communal Land Rights Act, is extensive and far-reaching. However, many legislative measures are either impractical due to financial constraints and lack of capacity of the Department of Land Affairs, or are not based on sufficient participation by local communities. Land administration should furthermore be planned and executed in the context of global good governance practices. This includes equal protection; clear land policy principles; land tenure principles according to the needs of individuals and population groups; flexible land registration principles to accommodate both individual and communal land tenure; and appropriate institutional arrangements. It is clear that established good governance principles may solve many of the problems encountered in land administration in South Africa. It is a topic that needs to be explored further. <![CDATA[<b>The committee system for competitive BIDS in local government</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000200004&lng=en&nrm=iso&tlng=en When a municipality contracts for goods or services, it must make use of competitive bidding / a public call for tenders for contracts over R200 000 as well as for long term contracts. A competitive bidding process generally consists of different stages, for example, compiling bid specifications, advertising the bid, the receipt and evaluation of bids, and the award and implementation of the contract. The Municipal Supply Chain Management Regulations require a municipality's Supply Chain Management Policy to provide for a committee system to oversee the different stages. Such committee system must, moreover, consist of at least a bid specification committee, a bid evaluation committee and a bid adjudication committee. Until recently, little attention has been given by the courts to the roles and composition of the different committees in the committee system. It is only after government, and in particular, municipalities have begun to implement the committee system in their procurement processes that it is evident that problems are arising. In recent months, the courts have increasingly had to deal with issues pertaining to the implementation of the committee system. In this article, the relevant legislative provisions on the committee system for competitive bids in local government are discussed. The functions of each committee are explained and all the cases that have thus far involved the implementation of the committee system are critically analysed. Much attention is given to the cases since they serve as a warning to municipalities to uphold and comply with the rules relating to the roles and composition of the different committees. The cases illustrate how important it is for municipalities to ensure that the different committees are properly constituted and that decisions at meetings are properly taken. They also highlight the importance of the supervisory role of the municipal manager over the different committees. In light of the cases it is clear that failure to comply with all the legislative requirements results in very costly litigation. <![CDATA[<b>The impact and constitutionality of the right to strike with regards to essential services</b>: <b>a comparative study</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000200005&lng=en&nrm=iso&tlng=en This article critically considers the application of and necessity for the right to strike, especially regarding employees that are employed in an essential service. The South African position is examined and compared to other countries around the world, but the focus is mainly on the United Kingdom. The article shows that South Africa's current labour legislation (especially regarding essential services) is in theory good, but that it is applied and enforced poorly in spite of the provisions contained in the Labour Relations Act1 and the Constitution of the Republic of South Africa 1996. This became evident in the 2007 public workers' strike in which many essential services employees took part. The United Kingdom, Australia, New Zealand, Canada, India, France and Kenya all have different ways of dealing with strikes and essential services. Some of these countries' approaches are similar to South Africa's, but in each there is some difference that could be useful in the South African situation. Through these comparisons it becomes clear that the right to strike is important in many countries around the world, but that each country's essential services (or services that can be classified as essential) are equally important. Every country places at the very least some limitation on the right of essential services employees to strike. In conclusion this article states that the South African Labour Law is not perfect and can be improved by means of comparison. This improvement is of vital importance to the lives, health and personal safety of every individual in the country. <![CDATA[<b>The duty to effect an appropriate mode of payment to minor pension beneficiaries under scrutiny in death claims</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000200006&lng=en&nrm=iso&tlng=en This note focuses on the payment into a trust arrangement in favour of a minor beneficiary as contemplated in terms of section 37C (2) of the Pension Funds Act 24 of 1956. The aim is to examine the criteria under which the boards of management of pension funds may deprive a guardian the right to administer benefits on behalf of minor beneficiaries. This examination is conducted within the context of the approach adopted by the Pension Funds Adjudicator in four specific determinations decided prior, but relevant, to the amendments to the Pension Funds Act, where the board in each case unlawfully deprived a guardian of the right to administer death benefits in favour of a minor beneficiary. Therefore, the note will discuss four specific determinations and thereafter comment about the criteria to be used by practitioners. The note argues that these determinations should be welcomed because of their progressive interpretation of the Pension Funds Act and for setting an important precedent for pension fund practitioners and boards. In each case, the Pension Funds Adjudicator found a violation of section 37C. The note also criticises the remedy granted in two of the determinations, namely Moralo v Holcim South African Provident Fund, and Mafe v Barloworld (SA) Retirement Fund Respondent, and argues that the Pension Funds Adjudicator's ruling on these matters was arbitrary and capricious because it disregarded its own precedent in Lebepe v Premier Foods Provident Fund & Others. We therefore submit that the Pension Funds Adjudicator should have ordered the boards in Moralo v Holcim South African Provident Fund, and Mafe v Barloworld (SA) Retirement Fund Respondent to pay all of the benefits directly to the complainants and guardians in those determinations.