Scielo RSS <![CDATA[PER: Potchefstroomse Elektroniese Regsblad]]> http://www.scielo.org.za/rss.php?pid=1727-378120150002&lang=pt vol. 18 num. 2 lang. pt <![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=S1727-37812015000200001&lng=pt&nrm=iso&tlng=pt <![CDATA[<b>Responsibilities of companies towards employees</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200002&lng=pt&nrm=iso&tlng=pt Central to company law is the promotion of corporate governance. An important question in company law still today is in whose interest the company should be managed. Corporate governance needs to address the entire span of responsibilities to stakeholders of the company such as customers, employees, shareholders, suppliers and the community at large. The promotion of human rights in the application of company law must also take place. This is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a "social institution" should be enhanced and protected. Because corporations are part of society and the community, like all of us, it is required of them to be socially responsible and have greater accountability to all stakeholders of the company. Although directors must act in the best interests of shareholders collectively they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are thus important. The advancement of social justice is thus important to corporations in that they should take note of the Constitution, labour legislation and company law legislation when social justice issues are dealt with. Employees have become very important stakeholders of companies and their needs should be taken into account in the bigger corporate governance and social responsibility framework. <![CDATA[<b>Protecting personal information in the era of identity theft: Just how safe is our personal information from identity thieves?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200003&lng=pt&nrm=iso&tlng=pt Identity theft has become one of the fastest growing white collar crimes in the world. It occurs when an individual's personal information such as inter alia his or her name, date of birth or credit card details is used by another individual to commit identity fraud. Identity theft can be committed via physical means or online. The increased use of the Internet for business and financial transactions, social networking and the storage of personal information has facilitated the work of identity thieves. Identity theft has an impact on the personal finances and emotional well-being of victims, and on the financial institutions and economies of countries. It presents challenges for law enforcement agencies and governments worldwide. This article examines how identity thieves use the personal information of individuals to commit identity fraud and theft, and looks at legislative solutions introduced in South Africa, the United States of America, the United Kingdom and India to combat identity theft crimes. The article examines measures introduced by the respective governments in these countries to counteract such crimes. Finally, the article will propose a way forward to counteract such crimes in the future. The study reveals that identity theft is a growing and evolving problem that requires a multi-faceted and multi-disciplinary approach by law enforcement agencies, businesses, individuals and collaboration between countries. It is advocated that businesses and institutions should take measures to protect personal information better and that individuals should be educated about their rights, and be vigilant and protect their personal information offline and in cyberspace. <![CDATA[<b>The regulation of market manipulation in Australia: A historical comparative perspective</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200004&lng=pt&nrm=iso&tlng=pt Notably, in Australia, market abuse practices like market manipulation and other market misconduct practices are expressly prohibited under the Corporations Act as amended by the Financial Services Reform Act. In the light of this, and for the purposes of this article, a brief historical analysis of the market manipulation prohibition will be presented first. Secondly, the available penalties and remedies for market manipulation are discussed. Thereafter, possible recommendations and significant Australian anti-market abuse enforcement approaches that may be utilised in South Africa are briefly stated. Lastly, concluding remarks are provided. <![CDATA[<b>Suggested safeguards and limitations for effective and permissible parenting coordination (facilitation or case management) in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200005&lng=pt&nrm=iso&tlng=pt With the advent of the Children's Act 38 of 2005 greater emphasis was placed on the importance of both parents' involvement in their children's day-to-day lives. An unintended negative consequence of an otherwise laudable shift in social policy which supported a shared parental involvement was that the courts became the forum for co-parents to dispute a lot of day-to-day issues in respect of their children. To alleviate the negative effects of high-conflict co-parenting cases on our court system and the children of divorce, a new alternative dispute resolution process, namely parenting coordination, was introduced. The new process was not labelled as such, but became known as facilitation in the Western Cape, and as case management in Gauteng. Parenting coordination is a legal-psychological hybrid intervention that derives from the practice of the courts. It has the potential to provide substantial benefits for divorcing or separating parties, their children and the court system. Since its inception a few years ago, parenting coordination has steadily grown in popularity as an alternative dispute resolution tool in South Africa. Overhasty implementation of parenting coordination without considering certain concerns could, however, damage the "brand" and lead to confusion about the process. In the first place the difference in nomenclature is a real problem. Secondly, the training and qualifications of parenting coordinators are problematic and even non-existent in most provinces. Thirdly, it is argued by sceptics that parenting coordination is impermissible and constitutes an improper delegation of judicial authority in circumstances where the parenting coordinator is appointed in a court order and not in terms of an Act or court rule or by agreement between the parties. It is further observed that parenting coordination amounts to arbitration in contravention of section 2 of the Arbitration Act 42 of 1965, which currently prohibits the use of arbitration in respect of matrimonial matters. Lastly, the cost of parenting coordination is indicated as an area of contention. To properly address these problems, various safeguards for and limitations on parenting coordination practice are considered. It is proposed that the internationally accepted term "parenting coordination" is also consistently used in South Africa. It is further proposed that adequate qualifications, proper training and sufficient experience for parenting coordinators are set. To counter the argument that parenting coordination is an unlawful delegation of judicial power, the necessary authority for courts to refer parties for parenting coordination is sought, firstly in the inherent power of the High Court as upper guardian to ensure the best interests of children, and secondly in the Children's Act and the Constitution of the Republic of South Africa, 1996 as far as the children's court and divorce courts are concerned. In addition, various limitations regarding the conditions under which and the stage at which a parenting coordinator should be appointed, the scope of a parenting coordinator's decision-making powers and the finality of his or her directives are suggested. Lastly, the issue of the affordability of parenting coordination is addressed and suggestions are made on ways to provide fair access to this new intervention. <![CDATA[<b>Exploring the cultural dimensions of the right to the highest attainable standard of health</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200006&lng=pt&nrm=iso&tlng=pt The right to enjoying the highest attainable standard of health is incorporated in many international and regional human rights instruments. This right contains both freedoms and entitlements, including the freedom to control one's own health and body and the right to an accessible system of health care, goods and services. Both aspects of the right to health - freedoms and entitlements - have important cultural dimensions. The UN Committee on Economic, Social and Cultural Rights has for instance stated that the right to health implies that health facilities, goods and services must be culturally appropriate, in other words respectful of the culture of individuals and communities. At the same time, it should be noted that culture and health may have a problematic relationship. Cultural patterns, attitudes or stereotypes may severely limit the health freedoms of people or may prevent certain people from accessing health care. Furthermore, there are some cultural or traditional practices that are condoned but that are very harmful to people's health. It seems that international human rights law demands respect for the cultural dimensions of the right to health, while at the same time requiring protection of the right to health against negative aspects of cultures. How does this work out in practice? What does the concept of "culturally appropriate" health goods and services mean at the national level? Who decides on what is or is not culturally appropriate? How have international supervisory bodies elaborated on the freedoms and entitlements of the right to health and the obligations for States Parties to the treaties in relation to the cultural dimensions of the right to health? This article analyses several treaty provisions and the interpretation of these provisions by the treaty monitoring bodies. Apart from several UN treaties, several regional treaties in Africa are dealt with, notably the African Charter on Human and Peoples' Rights. The article concludes that various cultural dimensions of the right to health are recognised and elaborated upon in recommendations by treaty monitoring bodies both at UN and African level. These bodies have endorsed the idea that health facilities, goods and services must be respectful of the culture of individuals, peoples and communities. At the same time, the right to health should be protected against the negative impact that cultural values, patterns or practices may have, such as on access to health goods and services and on the health of people as such. The latter issue has received most attention at the UN as well as at African level, and there appears to be a clear consensus on several practices that are considered harmful. It is also realised, however, that the identification of a certain practice as harmful by an international body, even if agreed to by the State Party, is not sufficient to eradicate it. Cultural communities are crucial in promoting social and behavioural changes that may be needed to eradicate harmful practices. It is therefore important to involve the cultural communities concerned in the drafting, implementation and evaluation of health laws and policies. This could be more emphasised by the monitoring bodies. The involvement of the cultural community is also crucial to respecting and promoting the more positive cultural dimensions of the right to health. By consulting the cultural communities and individuals concerned, States can implement the right to the enjoyment of the highest attainable standard of health in a culturally sensitive, appropriate and responsible way. <![CDATA[<b>Law's poverty</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200007&lng=pt&nrm=iso&tlng=pt This article adopts an analysis that explicitly politicises poverty and relates it to the concrete history of racialised capitalism and structural inequality that defined colonialism and apartheid and continues to persist and intensify in "post"-apartheid South Africa. Rather than formulating racialised poverty in legalist, economist or managerial terms, it should rather be understood as a form of oppression that comprises exploitation, marginalisation, powerlessness, cultural imperialism and violence. Such a formulation would make social structure, historical injustice and power central and would also allow for poverty to be grasped beyond a purely distributive logic by bringing to light the non-distributive, non-economic dimensions of poverty. Comprehending poverty in this way, as not only a question of economic distribution and empowerment, but also one of ethical, moral and even ontological recognition necessitates an enquiry into the emancipatory force of rights. Given their centrality in political and social discourse and in legal scholarship on poverty, it is worth considering whether and to what extent rights can be utilised in the struggle against (racialised) poverty. <![CDATA[<b>Apartheid's Alcatraz: The Barberton Prison Complex during the early 1980s - Part one</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200008&lng=pt&nrm=iso&tlng=pt The purpose of this two-part article is to examine in detail the public discourse surrounding the Barberton Prison Complex during the early 1980s, at the height of the apartheid era. The prisons within the Barberton Prison Complex were notorious as being among the most punitive of the many prisons within apartheid South Africa. Barberton was the place to which the most dangerous and intractable prisoners were sent to serve their sentences, making it apartheid's "Alcatraz". The focus of this article is on the treatment of "normal" as opposed to "political" prisoners during the period in question, allowing the "voices" of ordinary prisoners - often sidelined and silenced - to be brought to the fore. The Barberton Prison Complex is examined through the lens of public discourse, as reflected in a wide range of South African newspapers published at the time. By analysing a large number of reports dealing with events at Barberton during the period in question, in both English and Afrikaans language newspapers, as well as in both politically conservative and politically liberal newspapers, this article attempts to capture both the "smell" and the "feel" of what it was like to be imprisoned in one of apartheid's toughest prison complexes. Furthermore, this article seeks to show that - despite legislative measures restricting the publication of information on conditions inside apartheid prisons - the press was able to provide a steady stream of information to the South African public on the shocking events which occurred at Barberton during the period in question. Part One of this article deals with the deaths of three prisoners and the injury of many others during a day of violence at the Barberton prison farm on 29 December 1982, as well as the broader political implications of the criminal trial - known as the "heat exhaustion trial" - which followed. It is contended that the events surrounding the infamous "heat exhaustion trial" may be seen as a kind of metaphor for the apartheid system itself, as it began to unravel during the 1980s. <![CDATA[<b>Apartheid's Alcatraz: The Barberton Prison Complex during the early 1980s - Part two</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200009&lng=pt&nrm=iso&tlng=pt The purpose of this two-part article is to examine in detail the public discourse surrounding the Barberton Prison Complex during the early 1980s, at the height of the apartheid era. The prisons within the Barberton Prison Complex were notorious as being among the most punitive of the many prisons within apartheid South Africa. Barberton was the place to which the most dangerous and intractable prisoners were sent to serve their sentences, making it apartheid's "Alcatraz". The focus of this article is on the treatment of "normal" as opposed to "political" prisoners during the period in question, allowing the "voices" of ordinary prisoners - often sidelined and silenced - to be brought to the fore. The Barberton Prison Complex is examined through the lens of public discourse, as reflected in a wide range of South African newspapers published at the time. By analysing a large number of reports dealing with events at Barberton during the period in question, in both English and Afrikaans language newspapers, as well as in both politically conservative and politically liberal newspapers, this article attempts to capture both the "smell" and the "feel" of what it was like to be imprisoned in one of apartheid's toughest prison complexes. Furthermore, this article seeks to show that - despite legislative measures restricting the publication of information on conditions inside apartheid prisons - the press was able to provide a steady stream of information to the South African public on the shocking events which occurred at Barberton during the period in question. Part Two of the article examines a string of violent incidents which occurred within the Barberton Prison Complex during the course of 1983, leading to nine inmate deaths. The response of the authorities to this orgy of violence at Barberton is discussed, including the findings of a committee of enquiry. It is concluded that the events at Barberton during the early 1980s were symptomatic of what was happening to the apartheid system as a whole. The South African penal system - in particular at its harshest extremity - acted as a kind of barometer, revealing both the cruelty of the system, as well as the considerable constraints and pressures under which it was operating. <![CDATA[<b>Provisional thoughts on limitations to the right to procreate</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200010&lng=pt&nrm=iso&tlng=pt <![CDATA[<b>Making a case for a development-driven approach to law as a linchpin for the post-2015 development agenda</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200011&lng=pt&nrm=iso&tlng=pt The Millennium Development Goals (MDGs) are milestones on a long road to global development. They were adopted by consensus in 2000 as a policy framework to guide the global development process, ending poverty as the overarching goal. Time-bound, with quantified targets for addressing extreme poverty in its many dimensions, the goals have successfully drawn the attention of the world to the virulence of grinding poverty in low-income countries. However, with the deadline in plain sight it has become clear that many of the quantified targets set out in the Millennium Declaration (MD) in the year 2000 are no longer realistic. Recent reviews of the progress so far in achieving these goals suggest a marked discrepancy in outcomes across the regions. Besides, there are concerns that even if these set goals are met, new challenges have emerged with the potential of reversing whatever progress that has been made under the current development framework. For example, sub-Saharan Africa (SSA) as a region seems to be off-track in meeting these goals. While other regions of the world have made significant progress in achieving many of the goals, there is a widespread shortfall in the achievement of most of the MDGs in SSA countries. It is against this backdrop that there is an on-going process of articulating a new development agenda to consolidate and build on the successes of this current development framework, address new, pressing global concerns, and confront the shortfalls and gaps in the outcomes of the MDG framework. This paper argues that law has an inherent development function and can play a significant role in driving the proposed post-2015 development agenda. The paper therefore seeks to make a case for the adoption of a development-driven approach to law as a linchpin for the post-2015 development agenda. <![CDATA[<b>Section 294 of the C<i>hildren's Act: </i>Do roots really matter?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200012&lng=pt&nrm=iso&tlng=pt Section 294 of the Children's Act 38 of 2005 currently only permits commissioning parents to engage in surrogacy arrangements in instances where they are able to provide a genetic link to their future offspring. This provision then excludes other infertile individuals, who due to the cause of their infertility are unable to provide genetic material, from engaging in surrogacy as a means of becoming parents, often at times when adoption as an alternative is not available to them. This article critically analyses section 294 and the issues it raises. In particular, it considers the constitutionality of section 294 and the remedies available to infertile parties who cannot meet the genetic link requirement. This article further considers the importance of genetic links in acquiring a child and the alternatives thereto, and concludes by proposing a way forward. <![CDATA[<b><i>S v Litako </i></b><b>2014 SACR 431 (SCA): A clarification on extra curial statements and hearsay</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812015000200013&lng=pt&nrm=iso&tlng=pt On 16 April 2014, the Supreme Court of Appeal handed down judgment in the matter of S v Litako 2014 2 SACR 431 (SCA) ("Litako"). The judgment reconsiders the landmark decision of the same court, S v Ndhlovu 2002 2 SACR 325 (SCA) ("Ndhlovu") in which the court held that an informal admission made by one accused could be admitted against a co-accused even if the accused in court denies making the statement and the statement itself is therefore considered to be hearsay. The court in Ndhlovu applied section 3 of the Law of Evidence Amendment Act 45 of 1988 and found that the hearsay extra curial admission could be admitted in the interests of justice. In Litako the court found that section 3 did not overrule an existing common law rule, which is that the extra curial statement of an accused (whether an informal admission or a confession) cannot be tendered against a co-accused. This is because section 3 does not expressly overrule this common law rule. Rather, the provision itself requests that its application be subject to the common law. The judgment is important for various reasons. Firstly, it is generally in keeping with the existing rule on the cautionary treatment of accomplice evidence. Secondly, the judgment highlights the current confusion in the relationship between statute and common law with regards to informal admissions and confessions. Thirdly, the court employs methods of statutory interpretation to re-examine the principle from Ndhlovu and finds that the court in that case did not apply its mind correctly in disregarding the common law rule. The court undertook a teleological approach to interpretation by infusing the meaning of the words with the spirit, purport and objects of the Bill of Rights and found that the statute had not overruled the common law rule.