Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120110001&lang=en vol. 14 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>The requirements for the inclusion of standard terms in international sales contracts</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100001&lng=en&nrm=iso&tlng=en The problem dealing with the inclusion of standard terms and conditions in contracts is a problem that has engaged most legal systems. The United Nations Convention on Contracts for the International Sale of Goods, Vienna 1980 (CISG) does not expressly deal with this problem. Accordingly the solution to the issue must be found in an interpretation and application of the general principles found in articles 8, 14 and 18. One of the main objects of the CISG is the harmonisation of international trade law. It is generally recognised that in order to achieve harmonisation it is necessary that courts should interpret and apply the convention in a consistent and harmonious manner. Unfortunately a number of approaches have emerged from courts around the world in regard to the inclusion of standard terms. German courts have developed a strict approach which requires that the standard terms be made available to the addressee at the time of the conclusion of the contract. They also require that the standard terms be couched in the language of the main contract. In stark contrast an American court has used an approach which is very lax in regard to incorporation, even allowing incorporation after the conclusion of the contract. There is, however a more moderate approach set out in decisions of the Austrian Supreme Court where the court adopted an approach which is more akin to that found in most legal systems, namely that a clear incorporation clause in the contract is sufficient for the effective incorporation of standard terms. The author critically examines the case law, the various approaches and the underlying arguments on which they are based, before reaching the conclusion that the two extreme approaches should be rejected in favour of the more moderate approach. This approach is founded on a proper interpretation of the provisions of the CISG as well as being in step with international trade practice. <![CDATA[<b>Corporate identity as foundation of the criminal liability of legal persons (1)</b>: <b>theoretical principles</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100002&lng=en&nrm=iso&tlng=en The different models for the criminal liability of juristic persons reveal a tension between individualist and realistic approaches. For individualists a corporation is the product of a union of individuals. This means that a juristic person can only be held criminally responsible if the conduct and fault of an individual involved in the entity are attributed to the juristic person. For realists a corporate entity has an existence independent of its individual members. The juristic person is blameworthy because its corporate identity or corporate ethos encouraged the criminal conduct. A study of organisational theory reveals that corporate crime may not necessarily be traced to the fault of specific individuals. Corporate criminality often is the result of complex decisions on different levels of the corporate hierarchy and furthermore is encouraged by the manner in which the organisation is structured. Prominent scholars such as the American philosopher Peter A French and the Australian Brent Fisse rejected an individualist approach and attempted to develop models of corporate fault based on the corporate identity idea. The failure of a corporation to take preventative or corrective measures in reaction to corporate criminal conduct is regarded as the basis for corporate fault by these authors. French calls this the "principle of responsive adjustment" whilst Fisse names it the concept of "reactive fault." A more sophisticated model (the "corporate ethos" model), which is also more reconcilable with the basic notions of criminal law, was developed by the American legal scholar Pamela Bucy. A corporation will be held criminally responsible if its corporate ethos has encouraged the criminal conduct. The corporate ethos can be established with reference to numerous factors such as the corporate hierarchy, corporate goals, the existing monitoring and compliance systems and the question whether employees are rewarded or indemnified for inappropriate behavior. <![CDATA[<b>The right of the child to have contact with both parents</b>: <b>comments in view of recent developments in dutch law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100003&lng=en&nrm=iso&tlng=en This contribution discusses the amendment to section 1: 377a lid 1 BW of 1 March 2009, in Dutch law. According to this provision a child has the right to have contact with both parents as well as with those who have sufficient close personal links with the child. The parent who is not responsible for the physical care of the child has the right and obligation to have contact with the child. The question whether the South African law, through the provisions of section 28 of the Constitution and the Children's Act, provides such a right and obligation, is investigated. Even though the conclusion is reached that the South African law indirectly provides such right and obligation, it is argued that the explicit recognition thereof in the Children's Act would provide a statutory legal duty on parents to have and maintain contact with their child. This would enhance legal certainty. Attention is also given to the enforcement of such right of the child. <![CDATA[<b>A new look at the old problem of a reasonable expectation</b>: <b>the reasonableness of repeated renewals of fixed-term contracts as opposed to indefinite employment</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100004&lng=en&nrm=iso&tlng=en In South Africa, the Labour Relations Act 66 of 1995 (LRA) regulates and protects the position of the employee who reasonably expects that a fixed-term contract will be renewed on the same or similar terms while the employer only offered to renew the contract on less favourable terms or in some instances was not prepared to renew the fixed-term contract at all. The LRA regards the latter conduct as a dismissal, as long as the employee can prove that the employer was responsible for creating the reasonable expectation of contractual renewal. In contrast to this position, the LRA does not regulate or protect the position of the employee whose fixed-term contract was repeatedly renewed on the same, similar or even improved terms, while the employer was in a position to offer the employee indefinite employment. The employer may even have created a reasonable expectation that repeated renewals would result in permanent employment. The exploitation and abuse of the fixed-term contract to the extent that an employee is deprived of employment security and the benefits linked to an employment relationship of indefinite duration have prompted a comparative investigation into this particular field of law. <![CDATA[<b>The use of force in effecting arrest in South Africa and the 2010 bill</b>: <b>a step in the right direction?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100005&lng=en&nrm=iso&tlng=en In South Africa the use of force in effecting arrest is statutorily governed by section 49 of the Criminal Procedure Act 51 of 1977. The inception of the Constitution brought about a dramatic change in South African law in this regard. During 2001 and 2002 the two highest courts in the country had to decide on the constitutionality of sections 49(1) and 49(2) respectively. The Supreme Court of Appeal in Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA) did not declare section 49(1) unconstitutional but found it had to be interpreted restrictively ("read down") to survive constitutional scrutiny. The Constitutional Court on the other hand confirmed the unconstitutionality of section 49(2) in S v Walters 2002 2 SACR 105 (CC) and the section was declared invalid. By then (as early as 1998) the legislature had already promulgated an amendment to section 49, but the amendment came into operation only in 2003 after section 49 had undergone intensive constitutional scrutiny. Legal scholars and others raised serious objections against the amendment - some were even of the opinion that it created a "right to flee" and that the rights of perpetrators were protected to the detriment of law-abiding citizens. The Department of Justice and Constitutional Development in 2010 drafted an Amendment Bill which was subsequently approved in Parliament. This paper discusses and concludes on: the developments over the last years in the South African law with regard to the use of force in effecting arrest by the South African Police Service (SAPS); international policies and guidelines of the police in this regard; and the application of the provisions of the Amendment Bill in practice and the possible pitfalls in the application of the latter. <![CDATA[<b>Desirability of Afrikaans as working language for law students</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100006&lng=en&nrm=iso&tlng=en Since 1994 the official language status in South Africa went from two state languages to eleven. This caused English to stand out as the lingua franca of the wider community and resulted in government using English as the preferred medium of communication. This is especially the case in the business of law. The legal practice from the private, public and academic sectors is anglicising at a rapid rate which means that Afrikaans is diminishing as a legal language and that the nine additional official languages are not being developed entirely to function at a higher level. In the light of Anglicisation it begs the question whether it is still useful to teach Afrikaans as a legal language at tertiary institutions. This article explores the matter by focusing on the following: the importance of language within the legal profession, the history of Regsafrikaans, Anglicisation within the legal profession, English as the only language of record and the expediency of Afrikaans as a legal language. The authors arrive at the conclusion that it is indeed still important to teach Regsafrikaans to law students and recommend that law faculties should keep or reinstate this subject as part of their LLB curriculum. <![CDATA[<b>The suitability of the remedy of specific performance to breach of a "player's contract" with specific reference to the <i>Mapoe</i> and <i>Santos</i> cases</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100007&lng=en&nrm=iso&tlng=en During the 1990s, rugby union formation in the Republic of South Africa developed rapidly from a system of strict amateurism to one of professionalism. Professional participants in the sport received salaries for participation, and rugby became a business like any other. As in all forms of business, rugby had to be regulated more efficiently than had previously been the case. Tighter regulations were instituted by governing bodies, and ultimately labour legislation became applicable to professional rugby. A professional sportsman or woman participating in a team sport is generally considered an employee. This means that the same principles that govern employees in general should also apply to professional sportsmen and women. The exact nature of the "player's contract", a term generally used to describe the contract of employment between a professional sportsman or sportswoman and his or her employer, deserves closer attention. It has been argued with much merit that the "player's contract", while in essence a contract of employment, possesses certain sui generis characteristics. The first aim of this article is to demonstrate how this statement is in fact a substantial one. If it is concluded that the "player's contract" is in fact a sui generis contract of employment, the most suitable remedy in case of breach of contract must be determined. The second aim of this article is to indicate why the remedy of specific performance, which is generally not granted in cases where the defaulting party has to provide services of a personal nature, is the most suitable remedy in case of breach of "player's contracts". To substantiate this statement, recent applicable case law is investigated and discussed, particularly the recent case of Vrystaat Cheetahs (Edms) Beperk v Mapoe. Suggestions are finally offered as to how breach of "player's contracts" should be approached by South African courts in future. <![CDATA[<b>Has the balance been struck? The decision in <i>Johncom Media investments limited v M</i> 2009 4 SA 7 (CC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000100008&lng=en&nrm=iso&tlng=en The case of Johncom Media Investments Limited v M 2009 4 SA 7 (CC) required of the Constitutional Court to strike a balance between the rights to privacy and the right to freedom of expression as a consequence of section 12 of the Divorce Act 70 of 1979. According to the Court, it felt that the "remedy" it provided was the best under the circumstances. However, there are certain concerns regarding the Court's judgment which require clarification, possibly through legislative intervention.