Research Articles (Private Law)

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Browsing Research Articles (Private Law) by Author "Jansen, R-M."

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    Hospital disclaimers: Afrox Health Care v Strydom: chronicle
    (Faculty of Law, University of the Free State, 2003) Jansen, R-M.; Smith, B. S.
    Abstract not available
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    Multiple marriages, burial rights and the role of lobolo at the dissolution of the marriage
    (Faculty of Law, University of the Free State, 2003) Jansen, R-M.
    English: This paper highlights three aspects which have an impact on both customary and common law that came to the fore in the Thembisile case. An evaluation of the way in which the court dealt with the different aspects is made. Regarding multiple marriages, where a civil marriage is also involved, it is suggested that the courts should be hesitant to simply declare either the civil or the customary marriage a nullity and should consider the different options available first. Where a funeral is marred by feuds about burial rights, it is suggested that a flexible approach should be followed. Strict adherence to common law principles could lead to unreasonable and inequitable results, especially in traditional communities. Lastly, there seems to be conflict between the official customary law and the living law regarding the return of the lobolo at the dissolution of a customary marriage. Empirical research should be undertaken to determine whether lobolo is in fact still returned
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    Professionele aanspreeklikheid van ouditeure teenoor derdes op grond van nalatigheid
    (Faculty of Law, University of the Free State, 2004) Strauss, P. M. S.; Jansen, R-M.; Lubbe, D. S.
    English: People in the professional occupations such as auditors, lawyers, architects and engineers have a duty to treat their clients with solicitude. This duty arises from the nature of their calling and from the professional service that they offer their clients. This has led to the situation where members of the professions have increasingly been held responsible for damage suffered by third parties as a result of the neglect of their professionally inherent obligation of solicitude. Fraud scandals, such as those of Enron in the USA and Masterbond, PSC Guaranteed Growth and Tigon locally, have once again caused the focus to fall upon the professional responsibility of auditors.The question that is increasingly being asked is: when and under what circumstances will an auditor be held responsible towards a third party in his professional capacity for the negligent performance of his duties? For the purposes of this article, the focus will only be placed on the responsibility of the auditor on the grounds of his duty to report in terms of section 300 of the Companies Act. The distinctive rules and also the specific application of the general principles of delict in such cases are discussed in this article.
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    The recognition of Customary Marriages Act: many women still left out in the cold
    (Faculty of Law, University of the Free State, 2002-12) Jansen, R-M.
    English: This paper focuses on the position of women in monogamous customary marriages concluded before the commencement of The Recognition of Customary Marriages Act, 120 of 1998. This Act alleviated (on appearances) the subordination and inferior status of women in cutomary law. Sec 6 specifically stipulates that a wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial system governing the marriage, full status and capacity. According to sec 7 the proprietary consequences of marriages entered into before the commencement of the Act continue to be governed by customary law. However, the question arises - what is the point of sec 6 granting a wife equality with her husband and the capacity to acquire assets, but still subject to the customary law which places the marital property under the control and almost complete discretion of her husband? Many of the sections of the Divorce Act and the Matrimonial Property Act (which was introduced mainly to improve the postion of women) are also only applicable to customary marriages entered into after the commencement of the Act. It is submitted that arguments which supported a retrospective change to proprietary regimes, should have been adopted in the legislation. Sec 7(1) of the Act should be amended to provide that a monogamous customary marriage entered into before the commencement of the Act, is a marriage in community of property and of profit and loss.
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    Wapenbeheer: die posisie van die wapeneienaar in Suid-Afrika
    (Faculty of Law, University of the Free State, 2005) De Klerk, H. M.; Jansen, R-M.
    English: The position of the gun-owner was changed drastically when the Firearms Control Act60 of 2000 took effect on 1 July 2004. This Act repealed the Arms and Ammunition Act75 of 1969; the latter Act had regulated the possession of arms and ammunition since 1972. The Firearms Control Actis strict and detailed, and was amended a number of times by ministerial regulations before it came into force. It is obvious that an arms license is not easily obtainable, and gun-owners are concerned about these strict provisions. This article deals, first, with the position of the gun-owner in terms of the Arms and Ammunition Actand possible reasons for repealing this Act are indicated; secondly, the position of the gun-owner under the Firearms Control Actis scrutinised. Both the benefits and disadvantages of the new legislation are examined and recommendations are made.