Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120100001&lang=en vol. 13 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=S1727-37812010000100001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Legal perspectives on the role of culture in sustainable development</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000100002&lng=en&nrm=iso&tlng=en This article introduces some legal perspectives on the role of culture in sustainable development. The authors agree that sustainable development has been designed as an environmental concept but that room exists for the more prominent inclusion of some form(s) of the notion "culture" in the sustainable development equation. It is shown that the fluid nature and meaning of "culture" may require a distinction between the role of "culture" per se and the role of "cultural governance" in the sustainable development context. It is suggested that "cultural governance" as a notion may be more distinct and exact than "culture" itself. The more functional notion of "good cultural governance" is preferred as a benchmark in the sustainable development equation, with the implication that cultural governance occurs in accordance with a certain standard. This standard is briefly considered by looking at the meaning of good cultural governance as a notion that encompasses both cultural governance and good governance generally. The article is set in the South African context but also invokes some law and policy developments internationally, regionally and sub-regionally to depict how issues of culture have been infiltrating the sustainable development discourse and to distil some of the substantive benchmarks for good cultural governance. <![CDATA[<b>The role of good environmental governance in the sustainable development of South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000100003&lng=en&nrm=iso&tlng=en This article seeks to analyse good governance decision-making in the environmental context through an understanding and interpretation of the relationship between good environmental governance (evidenced inter alia by decision-making by public authorities) and sustainable development in South Africa. It critically assesses recent case law in an attempt to understand the way in which our courts are evaluating authorities' environmental decisions. In reaching its objectives, this article considers also how environmental decisions are made in the first place and asks the question: what are the value choices underlying government's decisions and what role does sustainable development play in informing decisions for good environmental governance. <![CDATA[<b>Rural development within the context of development, sustainability and rural issues</b> - <b>some constitutional, policy and implementation perspectives</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000100004&lng=en&nrm=iso&tlng=en This article provides an overview of some developments, internationally, regionally and in the SADC, in relation to development, that may be expected to influence the South African government's response to the development needs of the people in the country. An overview is provided of the somewhat haphazard way in which the Constitution of the Republic of South Africa, 1996 refers to the need for and objective of development (including rural development) in the country. Through their explanatory outline of three distinct phases in South African rural development law and policy: 1994-2000 (the Reconstruction and Development Programme and related documents and their implementation); 2000-April 2009 (the Integrated Sustainable Rural Development Strategy and its implementation) and April 2009+ (the Comprehensive Rural Development Programme and related documents), the authors review some of the historical strengths and future prospects related to rural development in South Africa. Based on an assessment of historical trends, a number of recommendations are made for government's way forward in the implementation of the constitutional objectives, law and policy relevant to rural development in the country. <![CDATA[<b>Good governance in the hands of the judiciary: lessons from the european example</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000100005&lng=en&nrm=iso&tlng=en This note is based on the author's guest presentation delivered at the Konrad-Adenauer Foundation/North-West University (Faculty of Law) Colloquium on 21 August 2009. Justice von Danwitz was invited to set the scene for further academic discourse on the broad topic of Good Governance and Sustainable Development. This contribution hence draws on the author's personal views and experience in the European context, and it is shown that the quest for good governance is universal and not specific to our times and that in fact, "(t)he true administration of justice is the firmest pillar of good government". The contribution considers what Europe has been able to realize in this field over the past 10 years by means of a description of the legal concepts and practical consequences of the quest for good governance in the European Union and some comments on the role of the judiciary in this process. The contribution serves to show that good government is a notion of which the meaning transcends geographical and jurisdictional borders and that it is possible for different countries and regions to exchange lessons and learning experiences in relation to good government in operation as well as the role of good government towards the achievement of sustainable development. <![CDATA[<b>The binding effect of the constitutive documents of the 1973 and 2008 companies acts of South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000100006&lng=en&nrm=iso&tlng=en This contribution examines the provisions of the constitutive documents of companies under two specific provisions, namely s 65(2) of the Companies Act 61 of 1973 and s 15(6) of the Companies Act 71 of 2008. The aim is to determine who is bound by these provisions, the circumstances which give rise to being bound by them, and the possible effect thereof on various parties. The provisions of the constitutive documents under section 65(2) of the 1973 Companies Act are interpreted by courts and academic writers to amount to a statutory contract between a company and its members and between members inter se. The members are said to be bound by the provisions of these documents only in their capacity as members. It is submitted, however, that the rights and obligations are granted to members in their capacity as such if they are membership rights which are granted by virtue on one's membership. So far the courts have failed to provide a logical explanation of the concept "capacity of a member as such". This failure and the "qua membership test" resulted in limitations in the interpretation of section 65(2): for example, the exclusion of persons who are regarded as outsiders. The directors, despite the fact that numerous provisions of the applicable article provides for their rights, have rights that are unenforceable via the articles, for being regarded as outsiders. The company on the other hand can enforce the obligations against the directors on the basis of breach of their fiduciary duties. These limitations called for a redraft of section 65(2). This contribution raises the legal challenges raised by the above. It arrives inter alia at the conclusion that the "qua membership test" may find application under the 2008 Companies Act, since members/shareholders may be allowed to exercise rights that are membership rights granted to them by virtue of their membership, and directors may be allowed to exercise rights that are granted to them in their official capacities as such. <![CDATA[<b>A Brief overview of the civil union act</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000100007&lng=en&nrm=iso&tlng=en The adoption of the Constitution of the Republic of South Africa, 1996 (the Constitution) has provided a sound framework for the elimination of discrimination and prejudice against all members of our society. The Constitution provides for equal recognition of the right to freedom of religion and sexual orientation within the framework of the right to equality. This note aims to provide a brief overview and analysis of the general and potentially problematic features of the Civil Union Act 17 of 2006 (the Act) in the context of equality, generally and within realm of the constitutional protection afforded to everyone in South Africa. This contribution is limited to an examination of the quality of the legal protection accorded to same-sex couples as envisaged in the Act, and not to an analysis of the nature of the institution of marriage itself or the theological and social dimensions of same-sex marriages. <![CDATA[<b>Parallel planning mechanisms as a "recipe for disaster"</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000100008&lng=en&nrm=iso&tlng=en This note offers a critical reflection of the recent landmark decision in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal which lay to rest the negative consequences of employing the DFA procedures of the Development Facilitation Act 67 of 1995 (DFA) alongside those of the provincial Ordinances to establish townships (or to use DFA parlance, "land development areas"). The welcome and timely decision in City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal has declared invalid chapters V and VI of the DFA. Moreover, it has formalised planning terminology in South Africa, delineated the boundaries of "municipal planning" and "urban planning and development" as listed in Schedules 4 and 5 of the Constitution of the Republic of South Africa, 1996 and, in the process, clarified the structure of planning law. This note examines the decision of the SCA and focus on the role it will clearly have in reforming some of the law relating to planning. It considers the facts of the case, uncertainties around terminology, the structure of planning in South Africa, the content of municipal planning, the role of the DFA and the consequences of the declaration of invalidity by the SCA.