Research Articles (Private Law)

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Is 'n prokureur geregtig op die koste van geregtelike stappe teen 'n voormalige kliënt?: kronieke
(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.
Abstract not available
Open Access
Calvyn die juris: kroniek
(Faculty of Law, University of the Free State, 2001) Wessels, H. A.; De Bruin, J. H.
Abstract not available
Open Access
Wat is die betekenis van boerdery vir inkomstebelastingdoeleindes?
(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.
English: The question is frequently asked whether certain activities by a taxpayer may be regarded as farming for income tax purposes. If so, certain farming expenses will be allowed as deductions in terms of the First Schedule to the Act which otherwise would not have been the case. Having indicated how the taxable income of a taxpayer is calculated, the definition of a trade is referred to. The meaning of farming is not defined, but in s 26 reference is made to pastoral, agricultural and other farming operations. There are certain sections in the Act, paragraphs in the First Schedule to the Act and practice notes which refer to certain types of farming activities. Reference is also made to the interpretation of farming by our courts (High and Special Courts) and the findings of the Special Boards. The viewpoints of several authors are also discussed. Additional examples of farming activities are given and the standard bona fide farming questionnaire by the SAIS is examined. The exigency of a feasibility study is emphasised to determine the viability of a proposed farming project. The following two-pronged test is advocated (i) did the taxpayer genuinely intend to farm and (ii) did he have a reasonable prospect of making a profit from the farming activities in the foreseeable future?
Open Access
Die verhouding tussen 'n klient, sy regsverteenwoordigers en derde partye
(Faculty of Law, University of the Free State, 2001) Bobbert, M. C. J.
English: The development of the contract of mandate (mandatum) between a client and his attorney as well as his advocate is discussed. Reference is also made to representation. The core of the client’s privity of contract with other parties consists of mandate and representation. Customs and usages are not referred to in this article. Other key concepts are also discussed. Delegation of authority is however the focus point and is based on consensual relations. There are two agreements which must show the intention to create privity of contract (a) the mandate between client and attorney and (b) the mandate between the attorney and other parties. A case study is given the facts of which are used to analyse the legal relationship between the following parties: the client, his country and city attorneys, his advocate and also a third party who is a debtor of the client.
Open Access
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.
Open Access
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
Open Access
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
Open Access
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.
Open Access
Seksuele teistering in die werkplek: 'n Suid-Afrikaanse perspektief
(Faculty of Law, University of the Free State, 2004) Snyman-Van Deventer, E.; Du Plessis, J. V.; De Bruin, J. H.
English: Sexual harassment in the workplace is a grave problem and it significantly impedes on a person's entrance into many sectors of the wage labour market. The number of sexual harassment complaints increases dramatically every year, although researchers estimate that 80 to 90% of sexual harassment cases go unreported. Despite the high figures, few South African court cases and legal literature deal with sexual harassment. The reason for this is that few persons who are harassed report a case for fear that they will lose their jobs or that they will become sources of ridicule. Sexual harassment is an infringement upon a person's personality and thus an iniurandi. The South African Constitution determines that there shall not be discriminated against any person and that includes a person's right to work without harassment and discrimination. It is therefore necessary that all employers ensure a safe environment without discrimination for all employees. Employers must adopt a policy on sexual harassment, communicate it to all employees and ensure that the policy be adhered to. If harassment does take place, the procedure and disciplinary process prescribed in the policy must be enforced.
Open Access
A note on the history of the Faculty of Law of the University of the Free State
(Faculty of Law, University of the Free State, 2004) Henning, J. J.; De Bruin, J. H.; Wessels, H. A.
Abstract not available
Open Access
Die behoefte aan ’n wyer artikel 2(3) van die Wet op Testamente 7 van 1953 (soos gewysig): ’n Kritiese beskouing
(University of the Free State, 2004) Faber, J. T.; Rabie, P. J.
Die Hoogste Hof van Appél se uitspraak in 𝘉𝘦𝘬𝘬𝘦𝘳 𝘷 𝘕𝘢𝘶𝘥𝘦 𝘦𝘯 𝘈𝘯𝘥𝘦𝘳𝘦 2003(5) SA 173 (HHA) het die posisie aangaande die toepassing van artikel 2(3)van die 𝘞𝘦𝘵 𝘰𝘱 𝘛𝘦𝘴𝘵𝘢𝘮𝘦𝘯𝘵𝘦 7 van 1953 (soos gewysig)¹ duidelik uiteengesit enalle onsekerheid uit die weg geruim. Voor hierdie uitspraak het die interpretasie van artikel 2(3) totregsonsekerheid gelei.Die howe het twee benaderings ‘ontwikkel’, naamlikdie ‘eng’ en ‘liberale’ (‘soepel’) benaderings.² In die 𝘉𝘦𝘬𝘬𝘦𝘳-𝘴𝘢𝘢𝘬 het appélregterOlivier beslis dat slegs die kondonasie van testamente wat persoonlik deurdie oorledene³ opgestel, geskryf, getik, tot stand gebring of verly is, toegelaatsal word. Alhoewel daar saamgestem word met regter Oliver se interpretasievan artikel 2(3) sal daar in hierdie skrywe gepoog word om die deur vir ’n‘wyer’ of ‘liberale’ artikel 2(3) oop te maak.
Open Access
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.
Open Access
The need for legislative reform regarding the authorisation of trustees in the South African law of trusts
(Faculty of Law, University of the Free State, 2007) Smith, B. S.; Van der Westhuizen, W. M.
English: According to section 6(1) of the Trust Property Control Act 57 of 1988, all trustees to whom the Act applies 'shall act in that capacity only if authorized thereto in writing by the Master' of the High Court. The requirement of written authorisation has, however, not been interpreted and applied by the South African judiciary in a consistent fashion, leading to uncertainty regarding the precise ambit of the section and the consequences of non-compliance therewith. This contribution analyses these inconsistencies and concludes that legislative intervention along the lines of pre-formation contracts as provided for in both company law and the law of close corporations may provide an adequate solution to the problems faced by both the parties to the trust and the outsiders who deal with them.
Open Access
Thomas Aquinas oor die aborsie-debat en die Kerk magesterium
(Faculty of Law, University of the Free State, 2007) Swartz, N. P.
English: Thomas of Aquino’s exchange of ideas and the church magesterium present an ex h a ustive overv i ew for the implementation of the dignity of human life.The result of such an exchange of ideas causes the church magesterium to oppose every threat to human life from the moment of conception. The threat to human life is most intense at the point where life begins — at that stage where it is at its most defenceless. It is, for example, pre-natal. It is at this moment when humans are totally dependent on the goodwill and care of others. The church magesterium attempts to have an awareness of a “culture of life” take hold in civil society. By having created the human soul, God clothed humans in godliness. Human life, therefore, has a sacred and inviolable quality. The inviolate quality of human life is guaranteed by the Constitution of South Africa. It guarantees the equality of all in law, also that of the fo e t u s.Should there be any violation of this right, it would have farreaching implications for political civil society. Humankind is obliged to respect life. It expresses humankind’s relationship to fellow-man: and it is valid from the first moment of conception through to adulthood. The foetus also is a fe l l ow human being and his or her rights should be respected just as the case would be with every other human being.
Open Access
The nature and essence of right and duty as the moral-ethical foundation of Rosmini's jural principles fundamental to human rights
(Faculty of Law, University of the Free State, 2008) Swartz, N. P.
English: According to Rosmini duty precedes right. Without duty preceding right it would be impossible to form a concept or idea of right. As stated by Rosmini, the concept of right is encapsulated within the idea of duty. Each right thus has a duty that counters it. If a human being loves his fellow man, he will fulfill his obligations towards that person. By carrying out the command of love, a person will not be able to wrong his fellow man. On the grounds hereof the decree of love and social beneficence underwrite, in the context of Rosmini all rights and duties, that of the State and of the individual. With regard to Thomas Aquinas, the rights and duties of the individual would be neglected, while that of the State, under the guise of Salus reipublicae supreme lex, would be stressed. The latter pave the way for human rights infringements, that is in contradistinction with the South African (Bill of Rights) Constitution and the Eighth and Fourteenth Amendments of the American Constitution.
Open Access
Tacit responsibilities assigned to the drafter of a credit agreement by the National Credit Act 34 of 2005 with particular emphasis on contractual consensus: a critical analysis
(Faculty of Law, University of the Free State, 2008-12) Mould, Kenneth
English: The National Credit Act 34 of 2005 came into full operation on 1 June 2007, effectively replacing the Credit Agreements Act 75 of 1980 and the Usury Act 73 of 1968. The main aim of this piece of legislation is to prevent the granting of so-called "reckless credit" to consumers, and in doing so protecting consumers from credit which may be, or may become, unmanageable. However, the act has placed some heavy responsibilities on certain areas of the law, especially the law of contract. The reason for this is that the relationship between the grantor of credit and the recipient thereof is almost entirely governed by contracts. If the recipient of credit enters into a contract, the contents which he or she is oblivious or uncertain of, it would not be too bold to state that consensus would be lacking in such a case, and no valid contract would come into existence. This article aims to identify specific obligations placed upon the drafter of a contract of credit specifically by the National Credit Act, but also exposes some problems that may arise from the Act, as far as consensus as prerequisite for a valid contract is concerned.
Open Access
Change to the age of majority: general impact and some consequences for the interpretation of wills
(University of the Free State, 2009) Faber, James Thomas; Janse van Vuren, Louis Theunis
On 1 July 2008, the age at which a person attains majority was lowered from 21 years to 18 years. Section 17 of the 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 stipulates that: “A child, whether male or female, becomes a major upon reaching the age of 18 years.” This change is consistent with the Constitution,¹ which defines a child as a person under the age of 18 years.² The department of social development motivated this change as follows: 𝘉𝘦𝘵𝘸𝘦𝘦𝘯 18 𝘢𝘯𝘥 21 𝘺𝘰𝘶’𝘳𝘦 𝘯𝘦𝘪𝘵𝘩𝘦𝘳 𝘢 𝘤𝘩𝘪𝘭𝘥 𝘯𝘰𝘳 𝘢𝘯 𝘢𝘥𝘶𝘭𝘵. 𝘛𝘩𝘦 𝘊𝘩𝘪𝘭𝘥𝘳𝘦𝘯’𝘴 𝘈𝘤𝘵 𝘰𝘧 2005 𝘤𝘭𝘢𝘳𝘪𝘧𝘪𝘦𝘴 𝘵𝘩𝘢𝘵 𝘨𝘳𝘦𝘺 𝘢𝘳𝘦𝘢 𝘢𝘯𝘥 𝘣𝘳𝘪𝘯𝘨𝘴 [𝘪𝘵] 𝘪𝘯 𝘭𝘪𝘯𝘦 𝘸𝘪𝘵𝘩 𝘴𝘦𝘤𝘵𝘪𝘰𝘯 28(3) 𝘰𝘧 𝘵𝘩𝘦 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯. 𝘕𝘰𝘸 𝘢𝘯𝘺 𝘱𝘦𝘳𝘴𝘰𝘯 𝘶𝘯𝘥𝘦𝘳 18, 𝘶𝘯𝘭𝘦𝘴𝘴 𝘮𝘢𝘳𝘳𝘪𝘦𝘥 𝘰𝘳 𝘦𝘮𝘢𝘯𝘤𝘪𝘱𝘢𝘵𝘦𝘥 𝘣𝘺 𝘰𝘳𝘥𝘦𝘳 𝘰𝘧 𝘤𝘰𝘶𝘳𝘵, 𝘪𝘴 𝘢 𝘤𝘩𝘪𝘭𝘥 𝘢𝘯𝘥 𝘢𝘯𝘺 𝘱𝘦𝘳𝘴𝘰𝘯 𝘰𝘷𝘦𝘳 18 𝘪𝘴 𝘢𝘯 𝘢𝘥𝘶𝘭𝘵.³ The obvious consequence of this change is that 18-year-olds will now be able to enter into contracts, get married, vote and/or even emigrate without their parents’ permission. However, this change is not without shortcomings. Young adolescents between 18 and 21 years of age are thereby deprived of the protection afforded to them by law,‏⁴ while there are still limitations based on age excluding them from certain juristic acts.⁵ This change also created discrepancies in the South African legal system regarding age as a factor influencing a person’s status. In terms of a “special trust”, an 18-year-old is afforded protection because of his age, but in terms of a “bewind trust”, that same 18-year-old has the capacity to terminate the “protection” created for him, on the basis of his newly acquired majority status.⁶ Such contradictions affect legislation and cause legal uncertainty. Some of the consequences relevant to the law of succession and the administration of estates will be discussed in this article.
Open Access
A critical study of the recurring problem of repudiation in the context of professional rugby in South Africa with particular emphasis on transformative constitutionalism
(Faculty of Law, University of the Free State, 2010-06) Mould, K.
English: Since rugby became a professional sport in the aftermath of the Rugby World Cup of 1995, the repudiation of sports contracts has become a general and recurring problem in the South African legal context. The legal problem of repudiation of sports contracts today is more prevalent than ever before, regardless of certain decisions wherein courts were willing to order coaches and players to specific performance of their contracts. This article attempts to find reasons for the courts' seeming unwillingness to grant orders of specific performance of sports (especially rugby) contracts, and suggests certain possible solutions to the recurring problem of repudiation in this context.
Open Access
Noodtoestand en die aksie van afhanklikes: Maimela v Makhado Municipality 2011-5-20 Saaknr 269/10 (HHA)
(Faculty of Law, University of the Free State, 2011-06) Neethling, J.; Potgieter, J. M.
Afrikaans: Die eerste eiser (M) en ene D, die oorlede man van die tweede eiser (P), is deur skote getref wat afgevuur is deur die tweede verweerder (N), 'n werknemer van die eerste verweerder, 'n munisipaliteit. M het die skoot oorleef terwyl D gesterf het weens die wond wat hy opgedoen het. Die eisers stel 'n skadevergoedingseis teen die verweerders in, M weens die beserings wat hy opgedoen het, en P weens die verlies van onderhoud namens haar en haar vier kinders weens die dood van D met wie sy ingevolge 'n gewoonteregtelike huwelik getroud was. Die munisipaliteit word middellik aangespreek omdat N na bewering in die loop van sy diensbetrekking opgetree het, en N in persoonlike hoedanigheid. Die verweerders beroep hulle op noodweer en noodtoestand as verweersgronde.
Open Access
Vonnisbespreking: die onsekerhede aangaande die toepaslike huweliksgoederebedeling (s) in poligame gewoonteregtelike huwelike by nienakoming van artikel 7 (6) van die Wet op Erkenning van Gebruiklike Huwelike
(LitNet, 2014-03) Müller-van der Westhuizen, Caroline
The uncertainties regarding the applicable matrimonial property system(s) in polygamous customary marriages upon non-compliance with section 7(6) of the Recognition of Customary Marriages Act This discussion assesses whether section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 should be interpreted as a requirement for a valid subsequent customary marriage, in light of recent judgments of the North Gauteng high court, the supreme court of appeal and the constitutional court, all in respect of Ngwenyama. The purpose of the discussion is to critically examine the uncertainties surrounding the matrimonial property system(s) that arise in polygamous customary marriages should section 7(6) not be complied with. The discussion is based primarily on the decision of the Supreme Court of Appeal in Ngwenyama that section 7(6) is not a requirement for a subsequent customary marriage to be valid, but also considers the judgments of the high court and constitutional court respectively. However, in analysing these three judgments, it becomes clear that the matter is all but clear-cut and that non-compliance with section 7(6) does have problematic consequences. The case law under discussion contemplates the following scenario: Where a husband marries his first wife without an antenuptial agreement the marriage will be a marriage in community of property. This is in terms of section 7(2) of the act. However, if he marries a second woman and complies with section 3 but not with section 7(6), it may be that the husband will be married simultaneously both in and out of community of property. The second marriage will be a marriage out of community of property, but with no written document to this effect. This may potentially cause great uncertainty pertaining to matrimonial property. It is proposed that registration of a contract which regulates the matrimonial property system of a polygamous customary marriage must be a requirement for a further customary marriage. This is to ensure legal certainty in such marriages. But section 7(6) needs to be amended to place an obligation on both the man and the prospective wife to register such a contract. However, if the prejudices that might be suffered in instances where there is non-compliance with such a section are taken into account, the answer the courts are looking for might be to declare the subsequent marriage to be a putative one.