Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120110007&lang=en vol. 14 num. 7 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Access to education and training</b>: <b>pathway to decent work for women</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700001&lng=en&nrm=iso&tlng=en <![CDATA[<b>The problems of proving actual or apparent bias</b>: <b>an analysis of contemporary developments in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700002&lng=en&nrm=iso&tlng=en This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator may not always be easy and parties often revert to apprehended bias, an allegation of bias in any adjudication process is a matter that courts take very seriously. This notwithstanding, the courts have failed to consistently demarcate the necessary elements and threshold of proof that complainants must overcome to secure a successful challenge of decisions based on adjudicative impartiality. Upon critical evaluation of the decisions on the subject so far rendered, this article suggests that the pattern which has seemingly emerged is that which weighs the allegations of bias against the presumption of impartiality and the requirements of the double reasonableness test. <![CDATA[<b>African indigenous land rights in a private ownership paradigm</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700003&lng=en&nrm=iso&tlng=en It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indigenous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about the access and use of land.1 He offers a different understanding of indigenous land rights systems by looking at the social order of communities that create "reciprocal rights and obligations that this binds together, and vests power in the community members over land". To determine who will be granted access to or exercise control over land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access)2 and who may control and manage the land resources on behalf of those who have access to it?3 There is a link with this reconceptualisation and the discourse of the commons. Os-trom's classification of goods leads to a definition of the commons (or common pool of resources) as "a class of resources for which exclusion is difficult and joint use involves subtractablity".4 The questions this article wishes to answer are: would it firstly be possible to classify the indigenous land rights system as a commons, and secondly would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa? <![CDATA[<b>South African private security contractors active in armed conflicts</b>: <b>citizenship, prosecution and the right to work</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700004&lng=en&nrm=iso&tlng=en South Africa has adopted two pieces of legislation since 1998 aimed at restricting one of the fastest growing sectors of the global economy: the private security industry. Not only is this legislation completely unique, but it appears wholly at odds with international opinion. In this article we place private security contractors (PSCs) under the microscope of international law, exploring the role they play in armed conflicts, and the status afforded them by international humanitarian law (IHL). We address the issue of prohibited mercenarism, questioning whether PSCs should be categorised as mercenaries. We then shift our focus to the South African legislation and discuss the ambit of its application as compared with international law obligations to outlaw mercenaries. We discuss the likelihood of successful prosecution of PSCs, and the potential penalties that PSCs might face in terms of the South African legislation. Lastly we consider the constitutional challenges which might emerge as this legislation, and a proposed amendment to the South African Citizenship Act threaten the constitutionally protected rights of South African PSCs to practise a profession and enjoy citizenship. <![CDATA[<b>Human rights that influence the mentally ill patient in South African medical law</b>: <b>a discussion of sections 9; 27; 30 and 31 of the Constitution</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700005&lng=en&nrm=iso&tlng=en The personalised nature of mental illness obscures from general view the intolerable burden of private and public distress that people with serious mental illness carry. Invariably the mentally ill person encounters rejection and humiliation that are in some way tantamount to a "second illness." The combination either disrupts or puts beyond reach the usual personal and social life stages of marriage, family life, raising children, sexual relationships, the choice of treatment, affordable housing, transportation, education and gainful employment. As a result of their lack of financial and social support and their experience of rejection from society, persons with mental illness tend to neglect themselves and their diet, and frequently delay seeking treatment. Against this background, this contribution critically focuses on the human rights that influence the mentally ill patient in South African medical law. Specific attention is paid to the relevance and meaning of sections 9 (the equality clause), 27 (access to health care services), 30 and 31 (language, culture and religion) of the Constitution of the Republic of South Africa, 1996. <![CDATA[<b>Analysing the onus issue in dismissals emanating from the enforcement of unilateral changes to conditions of employment</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700006&lng=en&nrm=iso&tlng=en The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court was how to interpret dismissals that appear to be based on operational requirements, and yet at the same time, such dismissals also appear to have the effect of compelling an employee to accept a demand in respect of a matter of mutual interest between the employer and the employee. The core section in the Labour Relations Act 66 of 1995 relating to disputes of this nature is section 187(1)(c) of the Act, and the central enquiry to such disputes is whether they are automatically unfair or operationally justifiable. The fine line that determines whether a dismissal is acceptable or not merits an analysis of the overall onus that faces an employer and employee. This analysis is the focus of the article, which deals predominantly with procedural issues. The issue relating to the promotion of collective bargaining will be assessed against the right to dismiss, based on an analysis of the situation in South Africa, and a brief comparison with the situations in the United Kingdom and Canada. Thereafter, recommendations are made to the South African legislature. <![CDATA[<b>The devil is in the definition - definitions and their limited use in legal problem solving</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700007&lng=en&nrm=iso&tlng=en The lawyer's usual attempt to catch the meaning of a thing by entangling it in a net of words is based on a common misapprehension of the way words work. The great minds of the ages have since time immemorial reminded us that words do not contain essences, that meanings are social constructs, and that the relation between words and meanings is slippery at best. Definitions presuppose that words have simple meanings attached to them in something like a one-to-one relationship, which is why the law can sometimes be so obtuse. It is the use of the law in a tribunal that provides the eventual understanding of how the law works. Decisions handed down in courts are embedded in a particular time and a particular set of circumstances and are the products of minds informed by a set of social experiences which other lawyers accept as qualifying those particular persons to pronounce on the law. Our legislature would do well when framing legislation to imitate those who drafted the Constitution of the Republic of South Africa, 1996 which is sufficiently specific, without the support of pages of definitions, to lead to very precise argument in the Constitutional Court, and yet sufficiently general to allow the law to develop with the flux of time. <![CDATA[<b>Third party fraud inducing material mistake <i>Slip Knot Investments 777 (Pty) Ltd v Du Toit</i> 2011 4 SA 72 (SCA)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700008&lng=en&nrm=iso&tlng=en In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of iustus error raised by the mistaken party. The position prior to this decision was uncertain and characterised by inconsistency, mostly occasioned by the application of the iustus error doctrine together with fault. The Supreme Court of Appeal found that in the circumstances the mistaken party was liable, despite the fraud of the third party, on the basis of the reliance theory. The decision is commendable for bringing a measure of certainty to the law of mistake on this point and indicating that the reliance theory (as opposed to the iustus error doctrine) is the appropriate means to resolving such cases. Nevertheless, it is suggested that although the general rule implied by the court's approach is entirely apposite, there may well be exceptional instances where on the basis of relevant policy considerations the reliance theory should not prevail and the mistaken party should be absolved from contractual liability. In this manner reliance, which at first seems reasonable for being induced by the conduct of the contract denier, may upon further reflection be regarded as unreasonable based on the consideration of risk creation at the hand of the contract assertor, for instance. Admitting exceptions in appropriate circumstances would also provide a degree of consonance with earlier case law, where, even if the court's approach was open to theoretical criticism, a court has intuitively felt that liability should not lie. <![CDATA[<b>Unauthorised adaptation of computer programmes - is criminalisation a solution?</b> <b><i>Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd</i></b><b> 2006 4 SA 458 (SCA)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700009&lng=en&nrm=iso&tlng=en In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 4 SA 458 (SCA) Haupt sought to enforce a copyright claim in the Data Explorer computer programme against Brewers Marketing Intelligence (Pty) Ltd. His claim was dismissed in the High Court and he appealed to the Supreme Court of Appeal. The Court held that copyright in the Data Explorer programme vested in Haupt. Haupt acquired copyright in the Data Explorer programme regardless of the fact that the programme was as a result of an unauthorised adaptation of the Project AMPS programme which belonged to Brewers Marketing Intelligence (Pty) Ltd. This case note inter alia analyses the possibility of an author being sued for infringement even though he has acquired copyright in a work that he created by making unauthorised adaptations to another's copyright material. Furthermore, it examines whether or not the law adequately protects copyright owners in situations where infringement takes the form of unauthorised adaptations of computer programmes. It is argued that the protection afforded by the Copyright Act 98 of 1978 (Copyright Act) in terms of section 27(1) to copyright owners of computer programmes is narrowly defined. It excludes from its ambit of criminal liability the act of making unauthorised adaptation of computer programmes. The issue that is considered is therefore whether or not the unauthorised adaptation of computer programmes should attract a criminal sanction. In addressing this issue and with the aim of making recommendations, the legal position in the United Kingdom (UK) is analysed. From the analysis it is recommended that the Copyright Act be amended by the insertion of a new section, section 27(1)(A), which will make the act of making an unauthorised adaptation of a computer programme an offence. This recommended section will close the gap that currently exists in our law with regard to unauthorised adaptations of computer programmes. <![CDATA[<b>Justice delayed is justice denied</b>: <b>protecting miners against occupational injuries and diseases: comments on <i>Mankayi v AngloGold Ashanti Ltd</i> 2011 32 ILJ 545 (CC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812011000700010&lng=en&nrm=iso&tlng=en In the Mankayai v Anglogold Ashant Ltd 2011 32 ILJ 545 (CC) the Constitutional Court was called upon to give meaning and content by interpreting the provision of section 35 of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and section 100(2) of the Occupational Diseases in Mines and Works Act 78 of 1973. The Court had to determine if the employee common-law right of recourse against his employer in cases where he sustained occupational diseases is extinguished by virtue of section 35(1) of COIDA. The purpose of this case note is twofold: firstly, it analyses the decision of the Constitutional Court in the Mankayi case; secondly, the case note looks at the significance of the Mankayi case for the system of occupational health and safety in South Africa. In conclusion, the contribution explores the need for the introduction of a unified system which will address issues of occupational health and safety in a coordinated and unified manner.