Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> vol. 15 num. 4 lang. es <![CDATA[SciELO Logo]]> <![CDATA[<b>Demographic and social factors influencing public opinion on prostitution</b>: <b>an exploratory study in Kwazulu-Natal Province, South Africa</b>]]> This paper examines countervailing South African public opinion on the subject of prostitution in South Africa, and identifies the factors which might influence these attitudes. It also investigates the complex relationship between public opinion and the law. Whilst engaging in prostitution constitutes a criminal offence under the Sexual Offences Act 23 of 1957, it is generally ignored by the police, which results in a quasi-legalised reality on the ground. In recent years there has been growing demand for the decriminalisation of prostitution, and as a result the issue is currently under consideration by the South African Law Reform Commission. The Commission released a Discussion Paper on Adult ProSstitution in May 2009, and is expected to make recommendations to parliament for legal reform in this area. An exploratory survey of 512 South Africans revealed interesting correlations between opinion on prostitution and both demographic characteristics (including gender, age, race and education level) and so-called "social" characteristics (including religiosity, belief in the importance of gender equality, the acceptance of rape myths, and a belief that prostitutes have no other options). The survey reveals two key findings in respect of the attitudes of South Africans to prostitution. Firstly, an overwhelming majority of South Africans - from all walks of life - remain strongly morally opposed to prostitution, and would not support legal reforms aimed at decriminalising or legalising prostitution. Secondly, our data confirm that these views are strongly influenced by certain demographic and 'social' variables. In particular, race, gender, religiosity, cohabitation status, and socio-economic status were found to be religiosity, cohabitation status, and socio-economic status were found to be statistically significantly related to opinions on prostitution, while other variables -particularly the belief in the importance of gender equality and the level of education - had no statistically significant relationship with tolerance of prostitution. Given that the proposed legal reforms, which will shortly be tabled before parliament, will 73necessitate the consideration of public opinion, it is imperative that studies such as the one presented in this paper be conducted to gauge the likely response which such proposed reforms might face. <![CDATA[<b>Rent control</b>: <b>a comparative analysis</b>]]> Recent case law shows that vulnerable, previously disadvantaged private sector tenants are currently facing eviction orders - and consequential homelessness - on the basis that their leases have expired. In terms of the case law it is evident that once their leases have expired, these households do not have access to alternative accommodation. In terms of the Constitution, this group of marginalised tenants have a constitutional right of access to adequate housing and a right to occupy land with legally secure tenure. The purpose of this article is to critically analyse a number of legislative interventions, and specifically rent control, that were imposed in various jurisdictions in order to provide strengthened tenure protection for tenants. The rationale for this analysis is to determine whether the current South African landlord-tenant regime is able to provide adequate tenure protection for vulnerable tenants and therefore in the process of transforming in line with the Constitution. The legal construction of rent control was adopted in pre-1994 South Africa, England and New York City to provide substantive tenure protection for tenants during housing shortages. These statutory interventions in the different private rental markets were justified on the basis that there was a general need to protect tenants against exploitation by landlords. However, the justification for the persistent imposition of rent control in New York City is different since it protects a minority group of financially weak tenants against homelessness. The English landlord-tenant regime highlights the importance of a well-structured social sector that can provide secure, long-term housing options for low-income households who are struggling to access the private rental sector. Additionally, the English rental housing framework shows that if the social sector is functioning as a "safety net" for low-income households, the private sector would be able to uphold deregulation. In light of these comparisons and the fact that the South African social sector is not functioning optimally yet, the question is whether the South African private sector is able to provide the required level of tenure protection for struggling tenants. Recent case law shows that tenants are at liberty to lodge unfair practice complaints with the Rental Housing Tribunals on the basis that the landlords' ground for termination of the lease constitutes an unfair practice. The Court defined an unfair practice as a practice that unreasonably prejudices the tenants' rights or interests. This judicial development signifies some transformation in the private sector since it allows the Tribunals to scrutinise landlords' reasons for termination of tenancies in light of tenants' personal and socioeconomic circumstances. The Tribunals are therefore empowered to weigh the interests of both parties and decide whether to confirm termination of the lease or set aside such termination. In light of this recent development, the Tribunals can provide strengthened tenure protection for destitute tenants on a case by case basis, which incorporates a flexible context-sensitive approach to the provision of secure housing rights in the landlord-tenant framework. This methodology is similar to the German approach. Even though this judicial development is welcomed, it raises some concerns with regard to landlords' property rights and specifically landlords' constitutional property rights since Tribunals are now at liberty to set aside contractually agreed grounds for termination of leases without any statutory guidance. The legislation fails to provide any information regarding legitimate grounds for termination, which might have to be rectified in future. The grounds listed in the rent control legislation should serve as a starting point to determine which grounds for termination of a lease should generally be upheld. However, German landlord-tenant law shows that a statutory ground for termination of a lease should not be imposed in an absolutist fashion but rather place a heavier burden on the tenant to prove why the lease should not come to an end. <![CDATA[<b>The role of human dignity in the assessment of fair compensation for unfair dismissals</b>]]> South African labour law is concerned with the attainment of fairness for both the employer and the employee. In weighing up the interests of the respective parties it is of paramount importance to ensure that a delicate balance is achieved so as to give credence to commercial reality as well as an individual's right to dignity. In other words the attainment of fairness in the employment relationship must give cognisance not only to surrounding socio-economic reality but also to human rights. The environment within which the world of work operates has at its core a free enterprise economy. Ultimately, an employer should generally not be penalised to the extent that it is crippled and unable to continue operating. It is argued in this article that in ascertaining what constitutes appropriate compensation for an unfair dismissal, the underlying reality that labour law operates in a free enterprise system must be and is given cognisance to by the legislation and the courts. At the same time in ascertaining what constitutes fair compensation for unfair dismissal due regard must be had not only to the labour rights contained in the Constitution but also to other rights protected in terms of the Constitution, most importantly, the rights to dignity and equality. The fact that the basis of the employment relationship is commercial and an employer is entitled and even encouraged to make profits is reflected in our law by the fact that there are caps on the amount of compensation for unfair dismissal in the interests of business efficiency and certainty. However, an analysis of relevant case law demonstrates that this can never be at the expense of a person's dignity. Hence the notion that the employment relationship is relational. This is reflected by the interpretation given to the legislation by the courts. Where there has been discrimination or an impairment of the employee's dignity, there are no such limits as to the amount of compensation a court can award. If there has been unfair discrimination, the courts may even award punitive and non-pecuniary damages. <![CDATA[<b>A critique of the key legislative framework guiding civil liberties in Zimbabwe</b>]]> The dynamic and controversial nature of Zimbabwean politics has manifested itself through several undemocratic practices, including restrictive legislation which sought to diminish participatory spaces and/or curtail civil liberties. Corruption, gross human rights violations and arbitrary decision-making processes have created a rift between citizens and the state. This has further created space for the establishment of pro-democracy civil society movements which have sought to mobilise citizens towards the restoration of democracy. The desire to cling to power by the ruling elites has seen the enactment of restrictive legislation that seeks to curtail and impinge on civil liberties and restrict the political landscape in favour of the ruling elites. Key legislative framework presented in this paper is within the areas of media and access to information, individual rights and freedoms, as well as legislation pertaining to the conduct of elections. In some cases, colonial legislation that politicians claimed to have repealed was reincarnated, as the post-colonial dispensation asserted its authority over its defenceless people. <![CDATA[<b>The <i>Bengwenyama</i> trilogy</b>: <b>constitutional rights and the fight for prospecting on community land</b>]]> Although developments subsequent to the judgment have undermined the value of the decision for the community involved, the Constitutional Court's judgment in the Bengwenyama matter provides a welcome precedent on the provisions of the Mineral and Petroleum Resources Development Act 28 of 2002 that deal with the existence of an internal appeal, the nature of consultation with interested and affected parties, the role of environmental considerations in the granting of prospecting rights, and the procedural obligations of the DMR in relation to the community preferent right to prospect or mine. However, its deliberations on the duty to consult and particularly the procedural implications of the community preferent right to prospect do not go far enough into the dynamics underlying the implementation of the law, or tackle the problematic linkages between the MPRDA, the law relating to communal land tenure, and the processing of land claims. <![CDATA[<b>Sink or swim? Debt review's ambivalent "Lifeline" - a second sequel to "... A Tale of Two Judgments" <i>Nedbank v Andrews</i> (240/2011) 2011 ZAECPEHC 29 (10 May 2011); <i>Firstrand Bank LTD v Evans</i> 2011 4 SA 597 (KZD) and <i>FirstRand Bank LTD v Janse van Rensburg</i> 2012 2 all SA 186 (ECP)</b>]]> The interface between the National Credit Act 34 of 2005 and the Insolvency Act 24 of 1936 has been the object of our courts' attention in a number of recent cases including Ex parte Ford and Two Similar Cases 2009 3 SA 376 (WCC), Investec Bank Ltd v Mutemeri 2010 1 SA 265 (GSJ), Naidoo v ABSA Bank Ltd 2010 4 SA 597 (SCA) and, more recently, Nedbank v Andrews (240/2011) 2011 ZAECPEHC 29 (10 May 2011), FirstRand Bank Ltd v Evans 2011 4 597 (KZD) and FirstRand Bank Ltd v Janse van Rensburg 2012 2 All SA 186 (ECP). The question raised in all of the three most recent cases was whether or not a debtor's application for debt review in terms of the National Credit Act constitutes an "act of insolvency" in terms of section 8 of the Insolvency Act, upon which a creditor may rely in an application for the compulsory sequestration of the debtor's estate. If it does, it would mean that by resorting to the debt relief measures provided by the National Credit Act a debtor commits the very act on which a creditor may base an application for a sequestration order which, if granted, will render the debtor's estate insolvent and bring about the liquidation of his assets. From the debtor's perspective, this is probably precisely the situation that he seeks to avert by applying for debt review. Further, sequestration would frustrate the stated purpose of the National Credit Act, which is that debtors should take responsibility for their debts by satisfying them in full. Concurrent creditors might also ultimately receive a dividend which falls far short of what is due to them. The question of whether a debtor's resorting to debt review may or should be the very act that triggers his estate's sequestration and its attendant consequences is an important issue, the treatment of which impacts significantly on the efficacy of the South African consumer debt relief system. This article analyses the most recent judgments and considers whether or not statutory regulation of the position is required.