Scielo RSS <![CDATA[Potchefstroom Electronic Law Journal (PELJ)]]> vol. 13 num. 3 lang. es <![CDATA[SciELO Logo]]> <![CDATA[<b>Restructuring of insolvent corporations in Canada</b>]]> <![CDATA[<b>Fuzzy law and the boundaries of secularism</b>]]> <![CDATA[<b>Municipal tender awards and internal appeals by unsuccessful bidders</b>]]> In recent years, bidders aggrieved by municipal tender awards are increasingly resorting to Section 62 of the Local Government: Municipal Systems Actfor relief. The application of this provision to tender processes is however strictly confined, and in most instances bidders find that they have no option but to approach the courts for the judicial review of tender awards. In this article, the application of Section 62 to a municipality's tender processes and decisions is critically analysed in the light of recent court judgments. Attention is also given to the relation between Section 62 and dispute resolution procedures in place under the Supply Chain Regulations, enacted under the Local Government: Municipal Finance Management Act.It is argued that at present, internal appeal and dispute resolution processes do not afford unsuccessful bidders adequate protection. <![CDATA[<b>To sequestrate or not to sequestrate in view of the National Credit Act 34 of 2005</b>: <b>a tale of two judgments</b>]]> The purpose of this article is to consider the impact of some of the provisions of the National Credit Act(the NCA) on sequestration applications in the form of applications for voluntary surrender, as well as compulsory sequestration. This matter is of particular relevance in view of two recent cases: in Ex parte Fordthe court refused to grant a sequestration order following an application for voluntary surrender since the applicant-debtors did not, according to the court, avail themselves adequately of debt relief measures provided for by the NCA where the bulk of the debt consisted of credit agreements regulated by the NCA; and in a more recent judgment, Investec Bank Ltd v Mutemeri, the respondent-debtors, namely the consumers, opposed an application for compulsory sequestration on the basis that the application for debt restructuring pursuant to debt review in terms of the NCA barred the applicant from proceeding with the application for compulsory sequestration, since they argued that such an application amounted to debt enforcement. This discussion therefore considers the impact of the debt relief remedies and certain special provisions that apply to debt enforcement in terms of the NCA on sequestration procedures provided for in the Insolvency Act in view of the above judgments. <![CDATA[<b>Can the application of the human rights of the child in a criminal case result in a therapeutic outcome?</b>]]> Prior to the change brought about by Sv M,the interests of children were only considered as a circumstance or mitigating factor of the offender during the sentencing process. The article will discuss case law in order to determine the impact that the inclusion of the human rights of the child had on the sentencing process if the offender was the primary caregiver of the child. Specific reference is made to Sections 28(2) and 28(1)(b) of the Constitution of the Republic of South Africa, 1996. The article will then consider whether this inclusion might improve therapeutic outcomes without the apprehension that the interests of justice would be forfeited. A therapeutic outcome is brought about when the attention is placed on the human, emotional and psychological side of the law. It is concluded that the Zinn triad remains the basic measure to be used by sentencing courts to determine an appropriate sentence. Should the sentence be direct imprisonment, the court has to ensure that the children receive appropriate care as prescribed by Section 28(1)(b). Should a range of sentences be considered, even though the court has a wide discretion to decide which factors should be allowed to influence the measure of punishment, when the offender is a primary caregiver, Section 28(2) must be included as an independent factor. It is also concluded from the case law discussion that the inclusion of the human rights of the child in the sentencing process did not automatically give rise to a therapeutic outcome, although in some judgments it did result in a therapeutic outcome. Thus, the consideration of the human rights of the children during the sentencing process creates the opportunity for a therapeutic outcome. <![CDATA[<b>The constitutionality of a biological father's recognition as a parent</b>]]> Despite the increased recognition afforded to biological fathers as legal parents, the Children's Act still does not treat fathers on the same basis as mothers as far as the automatic allocation of parental responsibilities and rights is concerned. This article investigates the constitutionality of the differential treatment of fathers in this respect, given South Africa's international obligations, especially in terms of the United Nations Convention on the Rights of the Child, to ensure that both parents have common responsibilities for the upbringing of their child. After a brief consideration of the constitutionality of the mother's position as parent, the constitutionality of the father's position is investigated, firstly, with reference to Section 9 of the Constitution and the question of whether the differentiation between mothers and fathers as far as the allocation of parental responsibilities and rights is concerned, amounts to unfair discrimination. The inquiry also considers whether the differentiation between committed fathers (that is, those who have shown the necessary commitment in terms of Sections 20 and 21 of the Children's Act to acquire parental responsibilities and rights) and uncommitted fathers may amount to discrimination on an unspecified ground. Since the limitation of the father's rights to equality may be justifiable, the outcomes of both inquiries are shown to be inconclusive. Finally, the legal position of the father is considered in relation to the child's constitutional rights - the rights to parental care and the right of the child to the paramountcy of its interests embodied in Section 28 of the Constitution. While there appears to be some justification for the limitation of the child's right to committed paternal care, it is submitted that an equalisation of the legal position of mothers and fathers as far as the automatic acquisition of parental responsibilities and rights is concerned, is not only justified but imperative if the constitutional rights of children are to be advanced and protected. <![CDATA[<b>The role of religious leaders in curbing the spread of HIV/AIDS in Nigeria</b>]]> The tragic impact of the HIV/AIDS pandemic in Nigeria and its rate of escalation despite increasing access to health services have been alarming and terrifying. Nigerian people are very religious, yet the impact of the pandemic leaves nothing untouched. The article examines the response of the Nigerian religious leaders to the challenges of the HIV/AIDS pandemic. It discusses some of the challenges facing religious leaders as they grapple with the consequences of this pandemic and explores ways in which they can make a real difference in halting its spread. <![CDATA[<b>Rethinking <i>Volks v Robinson</i></b>: <b>the implcations of applying a "contextualised choice model" to prospective south african domestic partnerships legislation</b>]]> The article considers certain critical failings of the so-called "choice argument" (that is the view that, by opting to cohabit in a life partnership rather than marry or enter into a civil partnership, a life partner is not entitled to the legal benefits provided by matrimonial property law) as it was applied to opposite-sex life partnerships by the majority of the Constitutional Court in Volks v Robinson. On the basis of Canadian jurisprudence, a "contextualised choice model" is developed that distinguishes between need-based claims and those involving property disputes, and holds that the "choice argument" could at best be relevant regarding the latter category of claims, while the existence of a reciprocal duty of support is sine qua non for any need-based claim to succeed. These findings are applied to registered and unregistered domestic partnerships under the draft Domestic Partnerships Bill, 2008, with the aim of suggesting certain amendments to the Bill in the hope of ensuring a more consistent and principled legal position once the Bill is enacted. <![CDATA[<b>Fundamental consumer rights under the consumer protection act 68 of 2008</b>: <b>a critical overview and analysis</b>]]> South Africa was in need of a comprehensive framework of legislation, policies and government authorities to regulate consumer-supplier interaction. The Consumer Protection Act 68 of 2008, which was signed by the President of the Republic of South Africa on 29 April 2009 and published in the Government Gazette on 29 April 2009, now provides an extensive framework for consumer protection and aims to develop, enhance and protect the rights of consumers and to eliminate unethical suppliers and improper business practices. Certain areas of the common law regarding consumer rights have been codified by the Act and certain unfair business practices that were previously unregulated are now governed by the Act. The Act has a wide field of application. It applies to every transaction occurring within South Africa for the supply of goods or services or the promotion of goods or services and the goods or services themselves, unless the transaction is exempted from the application of the Act. The Act also specifically regulates aspects of franchise agreements. In terms of the Act, consumers obtain several new rights and some existing rights are broadened and reinforced. These rights are: the right to equality in the consumer market; privacy; choice; disclosure and information; fair and responsible marketing; fair and honest dealing; fair, just and reasonable terms and conditions; and fair value, good quality and safety. The last right in terms of the Act deals with a supplier's accountability to consumers. The authors critically analyse and discuss these rights. It is clear that the Act is written in favour of the consumer. Various provisions of the Act make inroads into the common-law position to strengthen the position of the consumer vis-à-vis the supplier and suppliers are undoubtedly facing an onerous task to prepare to comply, and eventually attempt to comply, with the Act. Although the Act has its own interpretation clause, which provides that it must be interpreted in a manner that gives effect to the purposes of the Act, the Act poses many uncertainties and interpretational and practical challenges. Many questions are therefore raised, some of which remain unanswered. These questions illustrate some of the uncertainties concerning the scope and possible interpretation of the fundamental consumer rights. <![CDATA[<b>The impact of HIV/AIDS regarding informal social security</b>: <b>issues and perspectives from a South African context</b>]]> The purpose of the article is to examine the right to social assistance for households living with HIV/AIDS in South Africa. In particular, the article focuses on the impact of this pandemic on households' access to social assistance benefits in the wake of the HIV/AIDS pandemic, which has wrought untold sorrow and suffering to the overwhelming majority of households in South Africa. The article analyses the consequences of HIV/AIDS in relation to households' support systems, care and dependency burdens, and the extent to which the household members either acknowledge the illness (enabling them to better engage with treatment options) or alternatively, deny its existence. The article commences by reviewing the literature concerning the effects and social impact of HIV/AIDS on the livelihoods of households and their families. The social reciprocity that underpins households' livelihoods is briefly recapitulated. The article concludes that, while recent policy developments are to be welcomed, the current South African legal system of social security does not provide adequate cover for both people living with HIV/AIDS and their families. More remains to be done in order to provide a more comprehensive social security system for the excluded and marginalised people who are living with HIV/AIDS and their families. <![CDATA[<b><i>Jordan V Farber </i></b><b>(1352/09) [2009] Zanchc 81 (15/12/2009)</b>]]> This case note deals with several aspects of the law of contract, such as public policy and validity, error, cancellation, repudiation, undue influence and damages. It concerns the case of an elderly couple who had to stop their farming operations because of ill health. The attorney whom they approached for assistance offered to lease the farm, equipment and animals from them in his personal capacity, although in his professional capacity he also drafted the contracts of lease. It later transpired that the attorney used his position to mislead the couple as regards the contracts in question and that he was guilty of unethical and unprofessional conduct. The couple applied to court to have the leases declared void, alternatively cancelled, and to have the attorney evicted from the farm. The order was granted; however, the discussion seeks to demonstrate that the couple were afforded only minimal justice in that they did not claim, nor were they granted, any damages. The various possibilities open to them in the circumstances are examined and the conclusion is that ventilating the matter by way of application was probably not the best manner in which to have sought assistance. <![CDATA[<b>The South AFrican constitutional court and the rule of law</b>: <b>the <i>Masethla </i>judgment, a cause for concern?</b>]]> The rule of law as a foundational constitutional value constrains the exercise of public power but the precise limits of the constraints it sets are not well defined. In Masethla v President of the Republic of South Africa, the majority of the Constitutional Court opted for an interpretation of this value that frees the President from adherence to the demands of procedural fairness when exercising certain constitutional powers. This note will investigate the soundness of that interpretation against the background of theoretical expositions of the rule of law and earlier Constitutional Court judgments. <![CDATA[<b>Plagiarism</b>: <b>misconduct awareness on novice research within the cyberworld</b>]]> More often than not, there exists some form of infringement relating to the use of other authors' work. This is particularly so in instances in which novice authors make use of the information available within the cyber-digital environment. The article explains the meaning of plagiarism and describes the many manifestations thereof, with the primary aim of providing guidance to novice authors.