Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120110002&lang=en vol. 14 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=S1727-37812011000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>"Fair" mathematics in assessing delictual damages</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200002&lng=en&nrm=iso&tlng=en In assessing delictual damages the plaintiff is burdened with the duty to prove loss with a preponderance of probability, including uncertain future loss. In quantifying such a claim an actuary is often used to make actuarial calculations based on proven facts and realistic assumptions regarding the future. The role of the actuary is to guide the court in the calculations to be made. Relying on its wide judicial discretion the court will have the final say regarding the correctness of the assumptions on which these calculations are based. The court should give detailed reasons if any assumptions or parts of the calculations made by the actuary are rejected. It should preferably refrain from making its own calculations if an actuary is involved and should rather instruct the actuary to do recalculations if necessary. It does, however, fall within the wide discretion of the court to make a general contingency adjustment after the basic calculations have been accepted. In assessing delictual damages it is the duty of the court to ensure that both objective and subjective factors are considered in such a manner that the assessment may be regarded as an application of "fair" mathematics. <![CDATA[<b>Perspectives on the termination of debt review in terms of section 86(10) of the <i>National credit Act </i>34 of 2005</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200003&lng=en&nrm=iso&tlng=en The National Credit Act 34 of 2005 (the NCA) aims to address and prevent the overindebtedness of consumers and to provide mechanisms for resolving over-indebtedness based on the principle of satisfaction by the consumer of all his obligations. In this regard it provides inter alia for the mechanism of debt review, during which a debt counsellor reviews the debt situation of a consumer in order to determine if the consumer is over-indebted and to attempt to assist the consumer in obtaining debt relief in the form of a consensual debt re-arrangement agreement or court-ordered debt re-structuring. A pending debt review has serious consequences. It bars a consumer from entering into further credit agreements and creates a moratorium on debt enforcement by the credit provider. However, a debt review in terms of section 86 does not end or lapse automatically if a specific event fails to occur or upon the expiry of a specific time period. Before a credit provider can enforce a credit agreement that is the subject of a pending debt review, the debt review must be terminated in accordance with section 86(10) and certain other requirements must be met. If a debt review is incorrectly terminated in accordance with section 86(10), the enforcement proceedings instituted thereafter will be unlawful and premature. In practice the debt review process - and specifically the termination thereof - are problematic as there appears to be uncertainty, as a result of the sparse provisions of section 86(10), regarding exactly when a debt review can be terminated. Uncertainty exists regarding the scope of a debt review and whether it should be afforded a narrow or broad interpretation, which will inevitably affect the cut-off date for termination. This article attempts to address some of these issues. <![CDATA[<b>The <i>National Credit Act </i>regarding suretyships and reckless lending</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200004&lng=en&nrm=iso&tlng=en In terms of the National Credit Act a credit provider may conclude a credit agreement with a consumer only after he has made a proper financial assessment and concludes that the consumer will be able to satisfy all of his obligations under all his credit agreements. However, a practice of not conducting this affordability assessment has evolved amongst certain credit providers where the credit agreement involved is a suretyship agreement. This article investigates whether or not a suretyship agreement is indeed a credit agreement in terms of the National Credit Act, and if a financial assessment should be conducted in the case of a suretyship agreement. The main aim of the article is to try to identify what the concept of a "credit guarantee", as defined in the Act, encompasses and ultimately if the common-law contract of suretyship falls under this definition. Our conclusion is that "credit guarantee" is as vague and problematic as many of the other definitions in the Act. If one reads the Act in its entirety (including the regulations to the Act), it seems unlikely that the legislature intended not to regulate common-law suretyships also. <![CDATA[<b>Corporate identity as the basis for the criminal liability of juristic persons (2)</b>: <b>practical application</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200005&lng=en&nrm=iso&tlng=en The shortcomings of individualist models of corporate criminal liability have led to the development of more realistic approaches to the criminal liability of juristic persons. In this contribution two legislative attempts to impose criminal liability on corporations based on their unique corporate identity or corporate ethos are critically discussed. The Criminal Code Act of 1995 applicable in the Commonwealth of Australia provides that the fault element of an offence must be attributed to a corporate body if that body expressly, tacitly or impliedly authorised or permitted the commission of the offence. One of the manners in which the authorisation or permission for the offence may be established is by having regard to the corporate culture which had existed within the body corporate that directed, encouraged or tolerated the criminal conduct. This approach is often regarded as the most sophisticated and comprehensive model for corporate criminal liability. The Corporate Manslaughter and Corporate Homicide Act of the United Kingdom of 2007 provides that a jury may take into consideration the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within an organisation that were likely to have encouraged failure to comply with health and safety legislation. The corporate culture or corporate identity model is not the exclusive model of attribution in these jurisdictions. It does, however, go a long way towards recognising true corporate or organisational fault. Corporate acts are not merely reduced to the fault of individuals but are rather based on the manner in which the corporation is structured. <![CDATA[<b>Alignment of student discipline design and administration to constitutional and national law imperatives in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200006&lng=en&nrm=iso&tlng=en Higher Learning Institutions (HEIs) have an important role to play in the promotion of respect for fundamental human rights and other constitutional imperatives. This article will demonstrate that the design and administration of student discipline at HEIs qualifies to be administrative action. As such, the article will identify the constitutional and other legislative principles which can help student discipline to be aligned to the requirements of just administrative action, which are lawfulness, procedural fairness and reasonableness. The article will explore challenges faced by student discipline and proffer recommendations and suggestions for improved regulation and practice. <![CDATA[<b>"For the sake of the children"</b>: <b>South African family relocation disputes</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200007&lng=en&nrm=iso&tlng=en Decisions by primary caregiving parents to relocate after divorce, thereby disrupting the non-primary caregivers' right of contact with children or, where both parents have joint care, the denial of the other's parental rights and responsibilities to care, give rise to cases which deal with relocation disputes. My paper deals with the development of South African family jurisprudence in this area. Since the Children's Act does not provide any criteria for cases dealing with relocation I examine the different jurisprudential approaches/trends taken by our courts in dealing with relocation. I pave the way forward by making the argument that we need a general consistency in approach by our courts when dealing with relocation disputes. As our society becomes increasingly mobile, our courts will be faced with more frequent applications for local and international family relocations. I conclude by making the recommendation that despite the Children's Act, we still need "guidelines" or perhaps a "Relocation Act" which works in tandem with the Children's Act. <![CDATA[<b>The Appellate Division has spoken - sequestration proceedings do not qualify as proceedings to enforce a credit agreement under the <i>National Credit Act </i>34 of 2005</b>: <b><i>Naidoo v ABSA Bank </i></b><b>2010 4 SA 597 (SCA)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200008&lng=en&nrm=iso&tlng=en This case note aims to analyse the decision of the Supreme Court of Appeal in Naidoo v ABSA Bank 2010 4 SA 597 (SCA) and to spark some debate as to whether being under debt review in terms of the National Credit Act (NCA) should bar sequestration proceedings in the form of an application for the compulsory sequestration of a consumer's estate. This decision held that a credit provider does not need to comply with the procedure provided for in section 129(1) of the NCA before instituting sequestration proceedings against a debtor, as such proceedings are not proceedings to enforce a credit agreement. The main issues discussed in this article are whether the court was correct in its interpretation of the relevant provisions of the NCA and whether this decision that allows a creditor to sequestrate a debtor who is attempting to meet his/her obligations under debt review, without informing him/her, is consistent with the principle urging consumers to satisfy all of their financial obligations under the NCA. It is submitted by the author that the court was correct in its interpretation of the relevant provisions of the NCA, but may have overlooked how this decision may impact the principle of satisfaction by the consumer of all of his/her financial obligations. It is suggested by the author that amendments be made to force the creditor to give a section 129 notice to the debtor before seeking sequestration of his/her estate. The author also suggests that once debt restructuring has been granted, credit providers should not be allowed to proceed with sequestration proceedings against the debtor. <![CDATA[<b>Commercial appropriation of a person's image: <i>Wells v Atoll Media (Pty) Ltd </i>(unreported 11961/2006) 2009 ZAWCHC 173 (9 November 2009)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200009&lng=en&nrm=iso&tlng=en Our modern society has become transfixed with celebrity. Business people and marketers also endeavour to cash in on the popularity enjoyed by the stars and realise the value of associating merchandise or trademarks with the rich and famous. This leads to difficulties when the attributes of a person are apparently used without consent, which poses new questions to the law: should the law protect the individual against the unlawful use of his or her image? If so, to what extent should such protection be granted? These were some of the questions which the court had to answer in Wells v Atoll Media (Pty). The judgment in Wells has redefined the right to identity and provided some clarity on what the infringement of that right would amount to. When the attributes of a person are used without consent, the right to identity can be violated in one of four ways. A person's right to identity can be infringed upon if the attributes of that person are used without permission in a way which cannot be reconciled with the true image of the individual concerned, if the use amounts to the commercial exploitation of the individual, if it cannot be reconciled with generally accepted norms of decency, or if it violates the privacy of that person. <![CDATA[<b>The enforceability of illegal employment contracts according to the Labour Appeal Court</b>: <b>comments on <i>Kylie v CCMA </i>2010 4 SA 383 (LAC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000200010&lng=en&nrm=iso&tlng=en The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to resolve the dispute on the basis that the employee's contract of employment was invalid and therefore unenforceable in law. The Labour Appeal Court, on the other hand, overturned the Labour Court's decision and held that the CCMA has jurisdiction to resolve the dispute, regardless of the fact that sex work is still illegal under the South African law. For this decision, the Labour Appeal Court relied on section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices. According to the Labour Appeal Court the crucial question for determination by the court was if a person in the position of a sex worker enjoyed the full range of constitutional rights including the right to fair labour practices. In the court's reasoning the word everyone in section 23(1) of the Constitution is a term of general import and conveys precisely what it means. In other words everyone, including a sex worker, has the right to fair labour practices as guaranteed in the Constitution. A critical analysis of the judgment is made in this case note. The correctness of the court's judgment, particularly insofar as it relates to the approach to and the determination of the issue of jurisdiction, is questioned. It is argued that the Court lost focus on the main issue in the appeal, namely jurisdiction, and instead proceeded to place heavy emphasis on the employee's constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect -hence its decision. Given the critical importance of the matter, and the attendant implications of the judgment for labour litigation in South Africa, it is hoped that a similar case will soon come to the attention of a superior court and that a definitive pronouncement will be made.