Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120120005&lang=pt vol. 15 num. 5 lang. pt <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500001&lng=pt&nrm=iso&tlng=pt <![CDATA[<b>The relationship between courts and the other arms of government in promoting and protecting socio-economic rights in South Africa</b>: <b>what about separation of powers?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500002&lng=pt&nrm=iso&tlng=pt <![CDATA[<b><i>Vox Populi?</i></b> <b><i>Vox Humbug! -</i></b><b> rising tension between the South African executive and judiciary considered in historical context - part one</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500003&lng=pt&nrm=iso&tlng=pt This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary. Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated. Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more in-depth comparison in Part Two. <![CDATA[<b><i>Vox Populi?</i></b> <b><i>Vox Humbug! -</i></b><b> rising tension between the South African Executive and Judiciary considered in historical context - part two</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500004&lng=pt&nrm=iso&tlng=pt Part One of this article traced rising tensions between the South African executive and the judiciary on the question of the separation of powers. This situation was then contrasted and compared with a clash which took place in the 17th century between King James I of England and Chief Justice Edward Coke. In Part Two of this article attention is focused on two specific cases which arose out of the clash between James and Coke - Prohibitions Del Roy and The Case of Proclamations. The article then turns to a discussion of the lessons which can be drawn from these cases. The arguments which were raised in the cases are contrasted and compared with more contemporary arguments advanced in the context of the present conflict between the South African executive and the judiciary. The views of Ronald Dworkin comparing 'majoritarian' and 'constitutional' conceptions of democracy are examined in the context of this debate. Tentative conclusions are then drawn and warnings issued of the negative consequences for South Africa if the potential conflict between the executive and the judiciary is not properly resolved. <![CDATA[<b><i>Cave pecuniam</i></b>: <b>lawyers as launderers</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500005&lng=pt&nrm=iso&tlng=pt The attorney's trust account is an enticing prospect for criminals seeking ways to launder money acquired illegally, and the attorney whose trust account is abused in this way stands to be branded and punished as a money launderer. The overall aim of the article is to identify the dangers which money launderers pose to attorneys and to highlight the need for vigilance in the face of these dangers. It analyses the anti-money laundering reporting obligations imposed on attorneys by the Financial Intelligence Centre Act and considers impact of these obligations upon the attorney-client relationship. Some of the ways in which a law practice may become implicated in the placement, layering and integration stages of the money laundering process are discussed, and cases which deal with attorneys' involvement in money laundering schemes are presented. <![CDATA[<b>Some comments on the scheme of arrangement as an "affected transaction" as defined in the <i>Companies Act </i>71 of 2008</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500006&lng=pt&nrm=iso&tlng=pt A scheme of arrangement involving a regulated company and its shareholders is defined as an "affected transaction" in the Companies Act 71 of 2008. Although scheme of arrangements, which can be used to achieve a takeover of a company, are a common occurrence, the Act provides no definition of such schemes. The importance of knowing what actually constitutes a scheme of arrangement becomes apparent when it is noted that section 121 of the Actprovides that any person making an offer which if accepted would result in an affected transaction is obliged to comply with all the relevant reporting and approval requirements in the Act, as well as the Takeover Regulations, unless the Takeover Regulation Panel has granted an exemption. Giving effect to an affected transaction is prohibited, unless the Panel has issued a compliance certificate or granted an exemption. The article comments generally on the definition of a scheme of arrangement as an affected transaction, highlighting the elements of a scheme of arrangement. Specific consideration is given to transactions which include a re-acquisition by the company of its own previously issued securities and when such a re-acquisition on its own would be considered to be a scheme of arrangement and an affected transaction. Comment on the obligation to appoint an independent expert to report on the scheme and the relevance, if any, of the solvency and liquidity of the company embarking on a scheme of arrangement is included. Finally, consideration is given to the need to have a scheme of arrangement approved by a special resolution and the potential exclusion of certain voting rights. The article exposes a number of difficulties with the interpretation of the applicable provisions and suggests that these need to be revisited by the legislature for clarification. <![CDATA[<b>European and American perspectives on the choice of law regarding cross-border insolvencies of multinational corporations - suggestions for South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500007&lng=pt&nrm=iso&tlng=pt An increase in economic globalisation and international trade has amounted to an increase in the number of multinational enterprises that have debt, own assets and conduct business in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross-border insolvency (CBI). The legal response to this trend has, inter alia, produced two important international instruments that were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law) in 1997, which has been adopted by nineteen countries including the United States of America and South Africa. Secondly, the European Union (EU) adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. Both the EC Regulation and Chapter 15 adopt a "modified universalist" approach towards CBI matters. Europe and the United States of America are currently the world leaders in the area of CBI and the CBI legislation adopted and applied in these jurisdictions seems to be effective. As South Africa's Cross-Border Insolvency Act is not yet effective, there is no local policy guidance available to insolvency practitioners with regard to the application of the Model Law. At the basis of this article is the view that an analysis of the European and American approaches to CBI matters will provide South African practitioners with valuable insight, knowledge and lessons that could be used to understand and apply the principles adopted and applied in terms of the EC Regulation and Chapter 15, specifically the COMI concept, the "establishment" concept in the case of integrated multinational enterprises and related aspects. <![CDATA[<b>Framework legislation for the realisation of the right to have access to sufficient food</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500008&lng=pt&nrm=iso&tlng=pt Voedselsekerheid word in verskeie Suid-Afrikaanse regeringsverslae as 'n ontwikkelingsprioriteit gelys. Ten spyte van die prioritisering en ten spyte van die feit dat Suid-Afrika tans voedsel-selfonderhoudend is, bly voortgesette voedseltekorte 'n daaglikse realiteit vir ongeveer 35 present van die Suid-Afrikaanse bevolking. Tot op datum van skrywe manifesteer die regering se verbintenis tot voedselsekerheid in verbandhoudende beleide, strategies, programme en sektorale wetgewing met die fokus op voedselproduksie, -verspreiding, -veiligheid en -bystand. Sedert 2009 is 'n paradigmaskuif binne die internasionale voedselsekerheidsdebat aangemoedig, naamlik om voedselsekerheidsinisiatiewe op die reg op voldoende voedsel te fundeer. Gedurende 'n 2011 besoek aan Suid-Afrika het die Verenigde Nasies se Spesiale Rapporteur vir die Reg op Voedsel dienooreenkomstig aanbeveel dat 'n menseregte-gebaseerde benadering tot voedselsekerheid in die Suid-Afrikaanse regs- en beleidsraamwerk nodig is ten einde die enorme ongelykhede met betrekking tot voedselsekerheid (veral wat geografie, geslag en ras betref) aan te spreek. Deur 'n menseregte-gebaseerde benadering tot voedselsekerheid te volg, word voedselsekerheid gekomplementeer met dimensies van waardigheid, deursigtigheid, verantwoordingspligtigheid, deelname en bemagtiging. Die erkenning van regte sluit daarby aan deurdat die bereiking van voedselsekerheid as 'n uitkoms van die verwesenliking van bestaande regte, vernaamlik die reg op toegang tot voldoende voedsel, beskou word. Die reg op toegang tot voldoende voedsel, soos verskans in artikel 27(1)(b) van die Grondwet van die Republiek van Suid-Afrika, 1996 sal gevolglik 'n sentrale rol binne 'n menseregte-gebaseerde benadering tot voedselsekerheid speel. Artikel 27(2) van die Grondwet van die Republiek van Suid-Afrika, 1996 kwalifiseer egter artikel 27(1)(b), naamlik dat die staat redelike wetgewende en ander maatreels moet tref om binne sy beskikbare middele elk van die regte in artikel 27(1) vervat in toenemende mate te verwesenlik. Soos reeds aangedui, manifesteer die Suid-Afrikaanse regering se verbintenis tot voedsel-sekerheid in verbandhoudende beleid, strategiee en programme welke inisiatiewe in die lig van artikel 27(2) as ander maatreels beskou word. Hierdie bydrae het egter ten doel om die grondwetlike staatsplig om redelike wetgewende maatreels te tref, soos vereis in artikel 27(2), in die bree konteks van voedselsekerheid toe te lig. Meer spesifiek word die bydrae beperk tot die wyses waarin 'n menseregte-gebaseerde benadering tot voedselsekerheid as ontwikkelingsdoelwit in Suid-Afrikaanse nasionale wetgewende maatreels geakkommodeer kan word. Verskeie onderliggende temas geniet aandag in hierdie bydrae, onder andere: (a) die verband tussen voedselsekerheid en die reg op toegang tot voldoende voedsel; (b) voedselsekerheid as 'n ontwikkelingsdoelwit; en (c) die toenemende tendens om 'n menseregte-gebaseerde benadering tot ontwikkelingsinisiatiewe in die algemeen, maar ook ten opsigte van voedselsekerheid, te volg.<hr/>Various South African government reports list food security as a development priority. Despite this prioritisation and despite the fact that South Africa is currently food self-sufficient, ongoing food shortages remain a daily reality for approximately 35 percent of the South African population. The government's commitment to food security to date of writing this contribution manifests in related policies, strategies, programmes and sectoral legislation with the focus on food production, distribution, safety and assistance. A paradigm shift in the international food security debate was encouraged during 2009, namely to base food security initiatives on the right to sufficient food. During a 2011 visit to South Africa, the Special Rapporteur for the Right to Food of the United Nations, accordingly confirmed that a human rights-based approach to food security is necessary in the South African legal and policy framework in order to address the huge disparities in terms of food security (especially concerning geography, gender and race). A human rights-based approach to food security will add dimensions of dignity, transparency, accountability, participation and empowerment to food security initiatives. The achievement of food security is further seen as the realisation of existing rights, notably the right of access to sufficient food. The right of access to sufficient food, as entrenched in section 27(1)(b) of the Constitution of the Republic of South Africa, 1996 will accordingly play a central role within a human rights-based approach to food security. Section 27(2) of the Constitution of the Republic of South Africa, 1996 qualifies section 27(1)(b) by requiring the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of the section 27(1) rights. The South African government's commitment to food security, as already mentioned, currently manifests in related policies, strategies and programmes, which initiatives will qualify as other measures as referred to in section 27(2) mentioned above. This contribution, however, aims to elucidate the constitutional duty to take reasonable legislative measures as required by section 27(2) within the wider context of food security. This contribution is more specifically confined to the ways in which a human rights-based approach to food security can be accommodated in a proposed framework law as a national legislative measures. Several underlying and foundational themes are addressed in this contribution, amongst others: (a) the relationship between food security and the right of access to sufficient food; (b) food security as a developmental goal; and (c) the increasing trend to apply a human rights-based approach to development initiatives in general, but also to food security. <![CDATA[<b>Planning in all its (dis)guises</b>: <b>spheres of government, functional areas and authority</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500009&lng=pt&nrm=iso&tlng=pt The Constitution determines that the legislative and executive powers regarding 'regional planning and development', 'urban and rural development', 'provincial planning' and 'municipal planning' are divided among the three spheres of government. Yet the boundaries between these items listed in Schedules 4 and 5 of the Constitution are opaque and their precise content is not always apparent. Overlaps, conflicts and uncertainty may occur. In a number of landmark decisions the courts have provided content to these different functional areas. Clarity on what 'municipal planning' comprises leads to more certainty on the content of the other planning areas. Draft legislation such as the Spatial Planning and Land Use Management Bill (B14-2012) can also assist in adding substance to a demarcation of these different functional areas. Yet uncertainties still remain, occasioned by constitutional provisions such as sections 100, 139(1) and 155(6)-(7), that permit intervention by national and provincial government in provinces and municipalities respectively, as well as the support and monitoring by provincial government in respect of municipalities. Few clear solutions are immediately apparent. The role of the constitutional principles of co-operative government where uncertainty and conflict exist is examined, especially where no veto of one sphere over another is possible. Principles of interpretation can also assist in delineating the boundaries of the different functional areas. It seems, however, that the courts will find themselves having to address the remaining inconsistencies. <![CDATA[<b>An analysis of the dispute settlement mechanism under the <i>Consumer Protection Act</i> 68 of 2008</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500010&lng=pt&nrm=iso&tlng=pt This article critically analyses the provisions of the Consumer Protection Act 68 of 2008, which deals with the enforcement of consumer rights. The Act provides for various forums where consumers can seek redress in cases where their rights have been infringed, impaired or threatened. The article demonstrates that the consumer redress mechanism is an essential component of the Act. However, it argues that having various forums to do so may pose practical challenges, as this may cause confusion and may lead to forum-shopping in cases where an aggrieved consumer has to choose the appropriate forum to seek redress. It is proposed that section 52 should be amended and that section 69 should be purposively and narrowly interpreted to ensure that the consumer protection institutions are exhausted before approaching the ordinary courts. <![CDATA[<b>The influence of the <i>Consumer Protection Act</i> 68 of 2008 on the common law warranty against eviction</b>: <b>a comparative overview</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500011&lng=pt&nrm=iso&tlng=pt The implementation of the Consumer Protection Act 68 of 2008 (CPA) has great implications for the South African common law of sale. In this contribution the influence of the CPA on the seller's common law duty to warrant the buyer against eviction is investigated. Upon evaluation of the relevant provisions of the CPA, the legal position in the United Kingdom - specifically the provisions of the Sales of Goods Act of 1979 - is investigated. <![CDATA[<b>African-style mediation and Western-style divorce and family mediation</b>: <b>reflections for the South African context</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500012&lng=pt&nrm=iso&tlng=pt The implementation of the Consumer Protection Act 68 of 2008 (CPA) has great implications for the South African common law of sale. In this contribution the influence of the CPA on the seller's common law duty to warrant the buyer against eviction is investigated. Upon evaluation of the relevant provisions of the CPA, the legal position in the United Kingdom - specifically the provisions of the Sales of Goods Act of 1979 - is investigated. <![CDATA[<b>Termination-of-pregnancy rights and foetal interests in continued existence in South Africa</b>: <b>the <i>Choice on Termination of Pregnancy Act</i> 92 of 1996</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500013&lng=pt&nrm=iso&tlng=pt The aim of this article is to demonstrate that, although South Africa has permissive termination-of-pregnancy legislation, to the extent that women can terminate first-and second-trimester pregnancies on demand and for socio-economic reasons, foetal interests are in fact taken into account. The system of female reproductive rights progressively shelters foetal interests, albeit to a limited extent. South Africa is in the process of successfully balancing the conflicting notions of female reproductive rights and foetal interests. The article discusses the "right to terminate a pregnancy" with reference to the Constitution, the Choice on Termination of Pregnancy Act 92 of 1996 and relevant case law. On the topic of foetal interests, the article looks at the Choice on Termination of Pregnancy Act as legislative recognition of foetal interests since a woman's right to terminate her pregnancy is progressively limited as the pregnancy advances beyond the second trimester. The value of dignity justifies the recognition of foetal interests. Further, accepting that the Choice on Termination of Pregnancy Act limitedly protects foetal interests based on the value of dignity, the article questions why South Africa permits elective second trimester termination of pregnancies? Research indicates a need for second trimester terminations and the article discusses the position of a number of women seeking second trimester terminations. The article draws to an end by looking at the case of S v Mshumpa as an example of the balancing process that is needed when dealing with female reproductive rights and foetal interests. This article demonstrates the constitutional setting of women's termination-of-pregnancy rights on the one hand, and foetal interests on the other. Further, it illustrates that these conflicting positions, rather than being deepened, are in fact balanced by legislation and relevant case law. <![CDATA[<b>The <i>Child Justice Act</i></b>: <b><i>a</i></b><b> detailed consideration of section 68 as a point of departure with respect to the sentencing of young offenders</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500014&lng=pt&nrm=iso&tlng=pt The Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the "jurisdictional" provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed. <![CDATA[<b>Determining the effect (the social costs) of exclusion under the South African exclusionary rule</b>: <b>should factual guilt tilt the scales in favour of the admission of unconstitutionally obtained evidence?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500015&lng=pt&nrm=iso&tlng=pt Section 35(5) of the Constitution of the Republic of South Africa, 1996 governs the exclusion of unconstitutionally obtained evidence in criminal trials. Three groups of factors must be considered to assess whether unconstitutionally obtained evidence should either be excluded or admitted. This contribution is focussed on the third group of factors (also known as the "effect of exclusion", or the "social costs of exclusion") which consists of the "seriousness of the charge faced by the accused", and the "importance of the evidence to secure a conviction". This group of factors is concerned with the public interest in crime control. Some scholars argue that the "public mood" should be a weighty factor when our courts consider this group of factors. Against this background this article considers three issues: First, whether considerable weight should be attached to the "current mood" of society when our courts weigh and balance this group of factors against other relevant factors; secondly, whether a consideration of the "seriousness of the charge" and the "importance of the evidence for a successful prosecution" could possibly encroach upon the presumption of innocence; and, thirdly, whether factual guilt should be allowed to tip the scales in favour of the admission of unconstitutionally obtained evidence when the evidence is crucial for a conviction on a serious charge. <![CDATA[<b>The doctrine of quasi-mutual assent - has it become the general rule for the formation of contracts?</b>: <b>The case of <i>Pillay v Shaik</i> 2009 4 SA 74 (SCA)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500016&lng=pt&nrm=iso&tlng=pt The doctrine of quasi-mutual assent is undoubtedly part of our South African law and has been affirmed and applied in a number of leading decisions. The purpose of this note is to offer a critical analysis of the application of the doctrine in the case of Pillay v Shaik 2009 4 SA 74 (SCA). It is argued that the primary basis of contractual liability in South Africa has always been and still remains consensus ad idem as determined in terms of the rules relating to offer and acceptance It is also argued that the doctrine is not an answer to failure by the parties to comply with self-imposed formalities and/or the prescribed manner of acceptance of an offer for the valid formation of contracts. Based on the aim of the incorporation of the doctrine in our law, coupled with its application in previous court decisions, it is concluded that its application in the case of Pillay v Shaik was wrong and sets a bad precedent. <![CDATA[<b><i>Maccsand (Pty) Ltd v City of Cape Town</i></b><b> 2012 (4) SA 181 (CC)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500017&lng=pt&nrm=iso&tlng=pt The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority. <![CDATA[<b>Mootness and the approach to costs awards in constitutional litigation</b>: <b>a review of <i>Christian Roberts v Minister of Social Development</i> Case No 32838/05 (2010) (TPD)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500018&lng=pt&nrm=iso&tlng=pt The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority. <![CDATA[<b><i>Mora debitoris</i></b><b> and the principle of strict liability</b>: <b><i>Scoin Trading (Pty) Ltd v Bernstein</i></b><b> 2011 2 SA 118 (SCA)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500019&lng=pt&nrm=iso&tlng=pt The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority. <![CDATA[<b><i>State Control over Private Military and Security Companies in Armed Conflict</i></b><b> by H Tonkin</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500020&lng=pt&nrm=iso&tlng=pt The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority. <![CDATA[<b><i>The Future of African Customary Law</i></b><b> by Fenrich J, Galizzi P and Higgins TE (eds)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812012000500021&lng=pt&nrm=iso&tlng=pt The Constitutional Court in Maccsand (Pty) Ltd v City of Cape Town (CCT 103/11) 2012 ZACC 7 decided that the granting of mining rights or mining permits by the Minister of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 does not obviate the obligation on an applicant to obtain authorisations in terms of other legislation that deals with functional domains other than minerals, mining and prospecting. This applies to all other legislation, irrespective of whether the responsible administrator of such other legislation is in the national, provincial or local sphere of government. The effect of the decision is that planning and other authorities which derive their statutory mandate and powers from other legislation retain all their powers as regards planning and rezoning, for instance. In addition, the Minister of Mineral Resources cannot make a decision on behalf of, or for, such functionaries. The judgement also clarified the question of whether or not a national Act can supersede provincial legislation dealing with a distinctly different functional domain. In principle, the decision also indicates that the fact that a range of authorisations are required in terms of separate statutory instruments (each with its own functional domain and administered by its own functionary) does not necessarily amount to conflicts between these instruments. An owner of land may now insist that his land may not be used for mining purposes if it is not zoned for such purposes. It is submitted that, in order to provide certainty to land owners, developers and government functionaries, and to promote investor confidence (especially in the mining sector), an intergovernmental system for the consideration of applications by the functionaries responsible for the separate statutory instruments needs to be developed as a high priority.