Scielo RSS <![CDATA[Potchefstroom Electronic Law Journal (PELJ)]]> vol. 13 num. 2 lang. es <![CDATA[SciELO Logo]]> <![CDATA[<b>A future perspective on constitutional stability</b>]]> <![CDATA[<b>'N toekomstige perspektief op grondwetlike stabiliteit</b>]]> <![CDATA[<b>An embarrassment of riches or a profusion of confusion? An evaluation of the continued existence of the <i>Civil Union Act </i>17 of 2006 in the light of prospective domestic partnerships legislation in South Africa</b>]]> As it stands, South African family law currently holds that the Marriage Act 25 of 1961 applies exclusively to the solemnisation of heterosexual civil marriages while same-sex couples have no choice but to formalise their relationships in terms of the Civil Union Act 17 of 2006. In addition, the legal position is complicated by the fact that the latter Act not only allows both heterosexual and homosexual couples to conclude a civil union, but also provides that a civil union may take the form of either a marriage or a civil partnership, both of which enjoy the same legal recognition as, and give rise to the same legal consequences, as a civil marriage under the Marriage Act. In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential enactment of which casts significant doubt as to whether the prevailing framework should be retained. With this potential development in mind, this paper considers the desirability of maintaining the "separate but equal" status quo by: (a) comparing the South African Law Reform Commission's pre-Civil Union Act proposals with the approach eventually adopted by the legislature; (b) comparing and contrasting the post-Civil Union Act position in South Africa with that of an established and well-ordered jurisdiction such as the Netherlands and, in the light hereof, considering the cases for and against repealing the Civil Union Act; and (c) by considering the desirability and practicality of the civil partnership's potential co-existence with the Domestic Partnerships Bill (as modified in accordance with a recent study). A proposal is made that could provide a less complex and better streamlined family law dispensation in South Africa . <![CDATA[<b>Ethics, justice and the sale of kidneys for transplantation purposes</b>]]> Living kidney donor transplantations are complex; add to that financial compensation to the donor and one enters an ethical maze. Debates on whether the buying and selling of kidneys should be allowed are mainly between utilitarians, deontologists and virtue ethicists as legal transplants are more common in the Western world. The pros and cons of each theory in relation to the sale of human organs are analysed, after which the foundational principles for all bio-ethical judgments; beneficence, non-maleficence, autonomy and justice are also scrutinised in seeking to justify the sale of human kidneys for transplantation purposes in a country with a human rights culture. <![CDATA[<b>Temporary employment services (labour brokers) in South Africa and Namibia</b>]]> South Africa currently allows labour broking although this area of commerce is problematic. The trade union movement, government and organised business are presently debating the future regulation of this industry. Namibia has experimented with, and failed, to place a legislative ban on labour broking. The Supreme Court of Appeal of Namibia considered International Labour Organisation conventions and provisions of their Constitution before concluding that labour broking should be regulated but not prohibited. In this article it is argued that South African policy makers can gain valuable insights from the Namibian experience. It is submitted that it would be appropriate for Parliament to take cognisance of international and foreign principles and to accept amendments that would provide for stricter regulation for labour broking, rather than placing an outright ban on this economic activity. <![CDATA[<b><i>National Credit Regulator versus Nedbank Ltd </i></b><b>and the practice of debt counselling in South Africa</b>]]> The National Credit Regulator approached the then Transvaal Provincial Division of the High Court in 2008 by way of a notice of motion. In this application the Regulator prayed in terms of section 16(1)(b) of the National Credit Act 34 of 2005 (the "NCA") for the proper interpretation of mainly sections 86 and 87 of the same Act. Due to uncertainty and confusion the Regulator lodged an application to obtain clarity on some of the difficulties that debt counsellors experience in practice. The matter was heard in the High Court (TPD) on 02/03/2009 and judgment was handed down by Du Plessis J on 21/08/2009. This article discusses the fifteen prayers and the impact of the orders granted by the Court under three logical headings, namely: • those that deal with the NCA and the Magistrate's Court; Order 1 (on section 86(7)(c)), order 2 (an obligation to conduct a hearing), order 3 (the judicial role of the Magistrate's Court) and order 4 (the application procedure of the Magistrate's Court) defined the interaction between the NCA and the Magistrate's Court Act (the "MCA") very clearly. Since there is no sui generis procedure provided for in the NCA, it is submitted that the Court's approach is correct. However, the end result is that the over-indebted consumer is not supported to the degree the NCA envisages. For example: a rule 55 procedure of the MCA can be cumbersome and costly, while the NCA envisaged a fast and relatively inexpensive process. • those that deal with the role of the debt counsellor in debt restructuring; Order 5 (costs), order 6 (statutory function) and order 8 (the unique role of the debt counsellor), granted under this heading, are important. They define the role of the debt counsellor to be different from the run-of-the-mill applicant in terms of rule 55. He/she is even protected against some cost orders due to a statutory function. Because of this special function a question arises: should this difference in treatment not be even greater than custom presently permits or proposes? Since this function brings great responsibility and much paper work, should it not affect the fees that a debt counsellor may charge? • those that deal with the court procedures. Orders 7, 9, 10 and 11 in this section are welcomed, namely those that deal with the service of documents, the geographical jurisdiction and monetary limit of the court, reckless credit and the in duplum rule. However, the Court preferred to stay on the safe side with respect to emoluments attachments orders and the application of section 86(2) to section 129(1). The lack of direction on the question when formal debt enforcement in fact begins, is regrettable. However, the declarator is a milestone in the history of the NCA. The orders impact significantly on the practice of debt review and will continue to shape the credit industry. Despite some disappointments it can be concluded that the declarator on the whole adds value to the practice of debt counselling in South Africa. It is now for the industry, the NCR, the legislators and scholars to take matters further. <![CDATA[<b>How could the pension funds adjudicator get it so wrong? A critique of <i>Smith Versus Eskom Pension and Provident Fund</i></b>]]> In this case note the judgment in the Smith case is criticized for being inconsistent with the landmark ruling in Volks. It is argued that the Adjudicator ought to have remanded the matter in Smith to the Board and ought to have ordered it to re-examine its discretion with a focus on a set of factors. Some of the negative effects of Smith on the pension funds industry are also outlined. While the authors express their understanding that the Adjudicator's decision in Smith was made with the rights of women in mind, they believe that her reasoning was wrong. She may have arrived at the same decision on different reasoning. In order to prevent the negative effects of Smith on the pension funds industry, it is recommended that the Adjudicator, when given an opportunity, should overrule the precedent set in Smith. Failure to do so would create the risk of the inconsistent application of the term "spouse" under South African law, or at the very least in relation to acts of Parliament administered by the National Treasury, which may potentially violate the equality provisions of the Constitution. <![CDATA[<b>What should the board of management of a pension fund consider when dealing with death claims involving surviving cohabitants?</b>]]> This note argues that the Adjudicator's determination Hlathi should be welcomed by the pension funds industry because it clarifies the uncertain legal position that emerged in the wake of the judgment in Volks. It comments on the requirements in and implications of Hlathi for the pension funds industry and pension beneficiaries, and criticises the Adjudicator's determination as failing to expressly incorporate the emotional and intimate or sexual bond requirement in the new factual dependency test. It argues that while Hlathi appears to have reverted to the legal position that prevailed prior to Van der Merwe, the new test does not expressly incorporate the relevant requirement that a relationship of mutual dependence involves an emotional and intimate or sexual bond. As a result, the note is critical of this omission because it creates a potentially new uncertainty in the law, and calls on the current Adjudicator to clarify this matter.