Potchefstroom Electronic Law Journal (10/05/2013)

Die akademie as professie : orationes

2013-05-09T09:20:08Z

Author: Venter, F.
Vol 16 Issue 1
Publication: 2013
Page: 1-11
Abstract: Het u al ooit gewonder of daar 'n verband tussen die woorde "professor" en "professie" bestaan? En wat is 'n professie? Is mense ernstig as hulle sê prostitusie is die oudste professie? Daar is nie klinkklare antwoorde op hierdie vrae nie, maar dit is duidelik dat bepaalde gevolge daaraan geheg moet word as 'n mens wil sê dat jy aan 'n professie behoort.

Constitutional socio-economic rights and international law : "you are not alone" : orationes

2013-05-09T09:20:08Z

Author: Stein, T.
Vol 16 Issue 1
Publication: 2013
Page: 12-30
Abstract: As the title of my speech suggests, I should like to share today some thoughts about the nature, development and implementation of socio-economic rights. Setting out from the perspective of International and European law I should like to highlight a couple of similarities and parallels which I think exist when we consider the position of this kind of fundamental rights in our societies.

Common problems affecting supranational attempts in Africa : an analytical overview

2013-05-09T09:20:08Z

Author: Fagbayibo, B.
Vol 16 Issue 1
Publication: 2013
Page: 31-69
Abstract: Ever since the colonial era, attempts have been made, throughout the various regions of Africa, at building supranational units chiefly for both administrative and legal convenience. Examples of such attempts include the Federation of Rhodesia and Nyasaland, the East African High Commission and the Federations in former French West and Equatorial Africa, all of which were attempts at forging a supranational nation state.

Battered women and the requirement of imminence in self-defence

2013-05-09T09:20:08Z

Author: Goosen, S.
Vol 16 Issue 1
Publication: 2013
Page: 70-127
Abstract: Certain types of intentional killing are no longer regarded as unlawful, and therefore are not punished as murder. South Africa recognises that killing in self-defence is justifiable, and therefore not murder. Burchell offers the following definition of private defence:
A person who is the victim of an unlawful attack upon person, property or other recognized legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful.
Burchell has noted that two important and yet somewhat conflicting themes shape the structure of the law of private defence. One is that private defence involves a choice between two evils, and that in choosing, the lesser evil is to be preferred. The evils are set out as follows. Firstly, the harm threatened by an attack upon the interests of an individual. Secondly, harm perpetrated against the legal interest of the attacker, in the process of repelling the attack. The doctrine of the lesser evil requires that the defender should not inflict greater harm than that threatened by the initial attack. Burchell notes: "the central organizing principle of this approach is thus the comparative assessment of harms involved".

Recent developments in the provision of pro bono legal services by attorneys in South Africa

2013-05-09T09:20:08Z

Author: Holness, D.
Vol 16 Issue 1
Publication: 2013
Page: 128-164
Abstract: Our law and legal system can and should be a vehicle through which the lives of all those resident in South Africa are enhanced through the protection and promotion of the rights guaranteed in the Bill of Rights. This paper will focus on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. In this regard there have been and continue to be considerable gaps between the proper access to the civil justice imperatives of constitutional South Africa and the status quo which has existed from the advent of a democratic South Africa until the present.

Driving corporate social responsibility (CSR) through the Companies Act : an overview of the role of the social and ethics committee

2013-05-09T09:20:08Z

Author: Kloppers, H.J.
Vol 16 Issue 1
Publication: 2013
Page: 165-199
Abstract: The reform process of the company law reached its pinnacle with the enactment of the new Companies Act, which became effective on 1 May 2011 and changed the landscape of corporate law. The Act introduced new concepts such as business rescue practices providing companies in financial distress with an option other than continuing with insolvency procedures, and laid down new solvency and liquidity requirements. Despite the comprehensive changes brought about by the Act no express reference is made to companies' social responsibility (which is commonly referred to as CSR), and as long as no legal requirement is set to integrate CSR issues into their decision-making and governance structures businesses will not be legally obliged to act in a socially responsible manner. The legislature has taken cognisance of this fact and the fact that the public is increasingly paying attention to social issues, and has through section 72 of the Act without specifically referring to CSR made an attempt to ensure that CSR becomes infused and embedded in a company's governance structures.

HIV/AIDS, to disclose or not to disclose : that is the question

2013-05-09T09:20:08Z

Author: Le Roux-Kemp, A.
Vol 16 Issue 1
Publication: 2013
Page: 200-239
Abstract: An estimated 22.5 million people (including 2.3 million children) were living with HIV/AIDS in Sub-Saharan Africa at the end of 2009. It is furthermore estimated that approximately 1.3 million Africans died of AIDS in 2009. According to the South African National HIV Survey of 2008, it is estimated that 10.9% of South Africans older than two years are living with HIV/AIDS, and among those between the ages of 15 and 49 years the estimated HIV prevalence is 16.9%. These figures remain staggering and it therefore comes as no surprise that the impact and effect of HIV/AIDS are no longer limited to mortality rates and illnesses but are actually widespread and influence all aspects of our everyday lives. The health care sector, households, schools, workplaces and the economy - all of these are experiencing distinct challenges due to the high HIV/AIDS prevalence rate, and appropriate action must therefore be taken to deal with these challenges in their different contexts.

Reasonable and probable cause in the law of malicious prosecution : a review of South African and Commonwealth decisions

2013-05-09T09:20:08Z

Author: Okpaluba, C.
Vol 16 Issue 1
Publication: 2013
Page: 240-279
Abstract: It is not every prosecution that is concluded in favour of the accused person that necessarily leads to a successful claim for malicious prosecution. So much depends on the absence of a reasonable and probable cause, and the animus iniuriandi of the defendant in instigating, initiating or continuing the prosecution. It is widely accepted that reasonable and probable cause means an honest belief founded on reasonable ground(s) that the institution of proceedings is justified. It is about the honest belief of the defendant that the facts available at the time constituted an offence and that a reasonable person could have concluded that the plaintiff was guilty of such an offence. Ultimately, it is for the trial court to decide at the conclusion of the evidence whether or not there is evidence upon which the accused might reasonably be convicted.

The Use of Official Languages Act : diversity affirmed?

2013-05-09T09:20:08Z

Author: Pretorius, J.L.
Vol 16 Issue 1
Publication: 2013
Page: 280-319
Abstract: The Use of Official Languages Act ("the Act") is meant to "regulate and monitor" the use of official languages in terms of arguably one of the most inclusive official language arrangements of any constitution currently in force. The eleven languages recognised as official in terms of section 6(1) of the Constitution represent the home languages of more than 99 percent of the country's population. The list of official languages includes the languages of groups comprising as little as 1.58 percent of the total population. In addition, the Constitution has also included nonofficial languages in the scope of the Pan South African Language Board's mandate "to promote and ensure respect" for languages. It is against this background that Justice Sachs' remark that the principle of inclusivity "shines through the language provisions" of the Constitution must be seen.

The Child Justice Act : procedural sentencing issues

2013-05-09T09:20:08Z

Author: Terblanche, S.S.
Vol 16 Issue 1
Publication: 2013
Page: 320-350
Abstract: The Child Justice Act 75 of 2008 (hereafter referred to as "the Act") has not only changed the kind of sentences that may be imposed on a child offender and the principles in terms of which the appropriate sentence should be established, but has also amended or clarified several procedural issues closely associated with sentencing.

A selection of constitutional perspectives on human kidney sales

2013-05-09T09:20:08Z

Author: Venter, B.
Vol 16 Issue 1
Publication: 2013
Page: 351-403
Abstract: At the back of the abdominal cavity, just above the waist of the human body, two extremely vital organs are located. These organs are approximately 10 to 13 cm long and about 5 to 8 cm wide. They represent only 0,5% of the body's total weight, but together these two organs contain about 160 km of blood vessels that receive 20 to 25% of all the blood pumped by the heart. The body's total blood supply circulates through these organs about 12 times per day, and every hour they filter about 7,5 litres of blood. These organs have the life-sustaining task of removing waste products and excess fluids from the body, and they will continue performing their task until they have lost 75 to 80% of their function. These organs are known as the human kidneys, and although most of us are born with two kidneys, life with only one kidney is possible. If a person's kidney does not perform its required function any more, he will have to undergo dialysis treatment until a kidney becomes available for organ transplantation.

The enforcement of the payment of lobolo and its impact on chhildren's rights in South Africa : notes

2013-05-09T09:20:08Z

Author: Ngema, N.M.
Vol 16 Issue 1
Publication: 2013
Page: 404-425
Abstract: Various communities in South Africa practise the custom of lobolo, which people give different names, is shown above. These communities may be divided into two groups, those practicing theleka and those that do not. This article will focus on those communities that practise theleka. In the communities practising theleka the amount of lobolo is not fixed and the father or guardian of the wife may from time to time theleka the wife (her married daughter) and demand one to three head of cattle from his son-in-law. The wife and her children, if there are any, may be held by their maternal grandfather until the payment of lobolo has been met.

The paradox of migration and the interests of the atomistic nation-states : the Southern African perspective : notes

2013-05-09T09:20:09Z

Author: Ngandwe, P.J.
Vol 16 Issue 1
Publication: 2013
Page: 426-449
Abstract: The subject of migration falls under the ambit of regional integration and within the peace and security sphere of international law. The peace and security mandate departs from the position that it is in cultivating the spirit of good neighbourliness that peaceful neighbourhoods can be built. Subsequently, the world will as a corollary be free of a myriad security concerns.

Protecting critical databases - towards a risk based assessment of critical information infrastructures (CIIS) in South Africa : notes

2013-05-09T09:20:09Z

Author: Njotini, M.N.
Vol 16 Issue 1
Publication: 2013
Page: 450-481
Abstract: South Africa has long recognised the need to protect critical infrastructures (CIs). For example, legislations such as the Defence Act and the National Strategic Intelligence Act contain measures that, amongst others, guarantee the safeguarding of CIs. More specifically, the Defence Act requires the gathering, collating, evaluating and using of strategic intelligence related inter alia to the security of South Africa. The strategic intelligence is gathered, collated, evaluated and used in order to assess the attacks or threats of attacks to the security of South Africa's CIs. In general, CIs encompass structural and physical places or areas that are of strategic interest to a country, places or areas that are vital to the country's safety and security and the wellbeing of its citizens. Examples of CIs include inter alia petro-chemical stores (eg pump stations and oil refineries), international airports, the reserve bank, electricity distribution stations, strategic power stations, and water storage and distribution facilities. Attacks or threats of attacks to CIs have in the recent past proved to be real and pervasive.

The impact on women on the removal of gender as a rating variable in motor-vehicle insurance : notes

2013-05-09T09:20:09Z

Author: Wagener, A.N.
Vol 16 Issue 1
Publication: 2013
Page: 482-505
Abstract: It is common insurance business practice that South African motor-vehicle insurers use gender as a rating variable to classify risks into certain classes and to determine insurance premiums. Whether the insured is male or female could have a significant impact on the cost of his or her premium. Men pay higher motor-vehicle insurance premiums as they are considered as a higher risk group. Women drivers can pay up to 40 per cent less than men on motor-vehicle insurance premiums as they are considered a lower risk. Statistics show that women are involved in up to 20 per cent fewer motor-vehicle accidents than men and, when a woman is involved in a motor-vehicle accident her average repair cost is up to 35 per cent less than the average man's repair cost. It has also been found that women take fewer risks, make more careful decisions, and are more likely than men to abide by the speed limit while driving.

The history of labour hire in Namibia : a lesson for South Africa : notes

2013-05-09T09:20:09Z

Author: Botes, A.
Vol 16 Issue 1
Publication: 2013
Page: 506-536
Abstract: Since the 1990s labour hire has increased rapidly in Namibia, without being regulated. From 2007, however, labour hire was banned by the Namibian Government, up to the point in late 2008 where the Namibian Supreme Court case of Africa Personnel Services v Government of the Republic of Namibia once again focused the attention on this form of employment. One of the important aspects traversed was the history of labour hire, then known as the contract labour system, and the reasons why it is feared. This history greatly influenced the decision of the Namibian Government to ban labour hire in 2007. As will be seen in the discussion below, the labour hire disposition as it was at the time left the particular type of employee vulnerable and, sadly, led to exploitation. In 2009 the Namibian Government reinstated labour hire but regrettably did so without simultaneously promulgating new legislation in order to regulate the situation. Consequently the precarious situation of contract labour employees prevailed.